Vu and Minister for Immigration and Citizenship
[2007] AATA 1214
•10 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1214
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0134
GENERAL ADMINISTRATIVE DIVISION ) Re VU MANH HAI Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Regina Perton, Member Date10 April 2007
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and in substitution decides that the visa held by Mr Vu should not be cancelled on character grounds. (sgd) Regina Perton
Member
MIGRATION ‑ refugee visa ‑ cancellation ‑ criminal record ‑ character test ‑ Australian citizen children ‑ exercise of discretion
Migration Act 1958 s 499(1), 499(2A), 501(2), 501(6), 501(7).
Re Otene and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 142
Re Peters and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 585
REASONS FOR DECISION
10 April 2007 Regina Perton 1. On 16 January 2007 a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Citizenship) cancelled the Transitional (permanent) visa (Subclass BF-200) held by Vu Manh Hai on character grounds because of Mr Vu’s criminal record. On 22 January 2007, Mr Vu lodged an application for review of that decision.
ISSUE
2. The issue is whether the Tribunal should exercise its discretion to cancel Mr Vu’s visa.
BACKGROUND
3. Mr Vu was born in Vietnam on 25 February 1972. He arrived in Australia on 17 August 1994 on a Class XB, Subclass 200 (Refugee) visa. Mr Vu was accompanied by his wife, Thi Thu Hien and their two sons, Tien Dung Vu (Dung) (born May 1992) and Tien Viet Vu (Viet) (born May 1994). On 1 September 2004, Mr Vu’s visa became a Class BF-200 Transitional (permanent) visa. Mr Vu’s wife, from whom he is now permanently separated, is an Australian citizen as are his two sons. Mr Vu’s two sons were born while his parents were in refugee camps in Hong Kong (Dung) and The Philippines (Viet).
4. Between October 1998 and August 2006, Mr Vu was convicted of a number of primarily theft and drug offences in both Victoria and New South Wales. The respondent provided the following summary of Mr Vu’s criminal history:
Date/place:
Conviction:
Sentence:
31 Aug 06
Vic
Theft, Shopsteal, Go equipped to steal/cheat (2 counts), Unlicensed driving.
Aggregate: 12 months imprisonment with 6 months non-parole period.
5 May 04
NSW
Multiple counts of: Shoplifting, Larceny and Possess goods suspected of being stolen.
Aggregate: 18 months imprisonment with 12 months non-parole period.
17 Mar 04
NSW
Common assault, Shoplifting (2 counts), Larceny, Goods in personal custody suspected being stolen.
12 months wholly suspended sentence, supervision and drug treatment program. $600 fine.
24 Jul 02
Vic
Theft, Attempt theft, Possess property being proceeds of crime
4 months wholly suspended sentence
21 Apr 99
Vic
Theft, Shopsteal, Go equipped to steal/cheat, Failure to comply with Community Based Order, Traffic offences
3 months & 4 months wholly suspended sentences, forfeiture of property.
17 Dec 98
Vic
Traffic heroin, Possess heroin, Shopsteal, Traffic offences
12 months Community Based Order – attend corrections centre, 250 hours unpaid community work; Drivers license suspended 1 month.
9 Oct 98
Vic
Theft, Shopsteal
6 months Community Based Order – attend corrections centre, 75 hours unpaid community work.
3 Apr 98
Vic
Possess heroin, Shopsteal
Charges adjourned; Order for drug counselling and treatment.
5. Mr Vu’s most recent conviction was in August 2006. He was sentenced to 12 months in jail with a six month non-parole period. He was paroled in January 2007. His visa was cancelled and he was transferred to the Immigration Detention Centre (IDC) at Maribyrnong where he remains pending a decision in this matter.
6. In 2005, Mr Vu was also issued with a notice of an intended cancellation of his visa following his 18 month sentence in New South Wales. The delegate took into account Mr Vu’s submission and circumstances and decided not to cancel his visa on that occasion.
EVIDENCE
7. In his written and oral evidence Mr Vu described in detail why he fled Vietnam. Mr Vu was one of seven children, four of whom died before he was born. When he was born in 1972, only one sister and brother were still alive. They were 15 and five years old respectively. His family were Catholics and attended and helped out at the local church regularly. Mr Vu was in the choir and an altar boy. The parish used to assemble Vietnamese language material to distribute to those interested in Catholicism. Mr Vu had a minor role in this work. However, he was imprisoned at the age of fifteen and a half for participating in such activities. He spent four months in a crowded jail cell without being officially charged. Mr Vu was physically mistreated. He showed the Tribunal his permanently misshapen left arm which he said was dislocated during interrogation and not properly treated. After his parents, who were not well off, managed to raise sufficient money to bribe officials to release him, arrangements were made for Mr Vu to escape Vietnam by boat. It was the last time he saw or spoke to any members of his family.
8. Mr Vu told the Tribunal that left Vietnam in March 1988. It was Mr Vu’s first boat trip and he was seasick much of the time. He did not know anyone else on the barely seaworthy boat. After some months, they reached Hong Kong where Mr Vu spent almost five years. In late 1988 the International Red Cross made contact with Mr Vu’s family in Vietnam. He was told that his brother had been arrested after Mr Vu’s departure and no one knew where he was. Mr Vu has had no subsequent news of him. His father had also been arrested under suspicion of being involved in arranging Mr Vu's escape. His father had apparently been beaten and then released. His mother had passed on the message that because the police were still watching the family it was better that Mr Vu not contact them again. Mr Vu believes they later moved houses several times. In late 1991 Mr Vu heard that his sister had married and moved away from her parents.
9. Mr Vu described the difficult conditions in the refugee camp in Hong Kong, where there was violence and intimidation by gangs of thugs. Mr Vu met his wife in the camp. She, too, had left Vietnam by boat accompanied by her uncle. He got married in the camp and his first son, Dung, was born there. Mr Vu was eventually assessed as a refugee by the United Nations High Commissioner for Refugees (UNHCR). In 1993 Mr Vu and his family were transferred to a refugee camp in The Philippines. Mr Vu’s second son, Viet, was born in The Philippines in May 1994. The family arrived in Sydney on refugee visas in August 1994.
10. On arrival in Sydney Mr Vu undertook a six-month English language course. Apart from a short TAFE course, Mr Vu has had no other formal education since being imprisoned at the age of fifteen. In 1996 Mr Vu's wife was wrongly diagnosed as suffering from cancer. In 1997, she suffered a miscarriage. The family then moved to Melbourne. It was during the difficulties he faced when his wife was ill that Mr Vu was first encouraged by friends to try heroin to relieve his anxiety. He initially smoked heroin in cigarettes. He was able to continue working initially. He later started injecting heroin and it was then that he started to commit crimes to pay for heroin. He was directed as to what to shoplift and from where, in return for heroin.
11. In late 2001 Mr Vu and his wife separated and Mr Vu moved out of the family home. The separation was primarily due to his drug use. Mr Vu returned to Sydney in late 2001. He maintained regular telephone contact with his sons and returned to visit them in Melbourne from time to time. It was during one of these visits in July 2002 that Mr Vu was convicted of further theft-related offences and given another four-month suspended sentence. Mr Vu said that he had, in fact, not committed any offence but was given inappropriate legal advice that he plead guilty. Later in 2002 Mr Vu moved to Queensland and stopped using heroin. While in Queensland he worked on a tomato farm. He returned to Melbourne to visit his children after the harvest. In 2003 Mr Vu returned to Melbourne. He attempted a marital reconciliation for the sake of the children but things did not work out. Mr Vu said that his wife and her friends no longer had any respect for him. Mr Vu then returned to Sydney and began using heroin again. He began shoplifting again to finance his habit. In March 2004 he received a 12 month suspended sentence for further offences. He was also required to undertake a drug treatment program. In May 2004 he was convicted of further offences and given 18 months imprisonment with a 12 month non-parole period. Towards the end of his jail sentence he was issued with a notice of intention to cancel his visa; but the delegate decided not to do so after receiving Mr Vu's response to the notice. After his release from prison in New South Wales in November 2004, Mr Vu remained in Sydney to complete his parole period. He did a further course in English and remained drug free. Mr Vu was aware that further offences could result in his deportation. After the expiry of the parole period, Mr Vu returned to Melbourne to be closer to his sons.
12. In early 2006 Mr Vu found out through acquaintances he had not met for some years that his sister had died at sea some years earlier while trying to flee Vietnam. In mid-2006 he learned that his mother had died and that his father was very ill. Mr Vu was on a methadone program at the time to which he had been referred in May 2006. He felt very depressed as a result of hearing about his family’s circumstances. He started using heroin again about a week before his arrest for the theft offences that led to his most recent 12 month sentence.
13. When living in Melbourne and not in jail, Mr Vu stated that he saw his sons either weekly or fortnightly. Mr Vu would usually take them to the nearby regional shopping centre to play computer games. He would also take them to a friend’s place for a meal. When living interstate he would contact them by telephone. He did not want his children to see him while he was in jail. He has now told his children about his criminal history and the punishments he has received. Mr Vu’s younger son, Viet, attended the Tribunal hearing.
14. Mr Vu said he has continued on the methadone program during his recent sentence and at the IDC. His required dosage has lessened. His sons have visited him at the IDC. He has also been allowed to go on outings with them.
15. Mr Vu stated that none of his offences involved violence. He had not been involved in selling heroin to anybody. He said that he had not stolen from people’s homes but only from stores. He stated that the trafficking offence in December 1998 arose when he bought a cap of heroin from an undercover policeman for his own use. He said that he has never been involved in offences against people. The conviction for common assault arose when he tried to get away from a security guard who was holding him down. The guard was not hurt. The most recent unlicensed driving offence occurred shortly after the expiry of his licence when the police checked his car after the shoplifting offence.
16. Under cross-examination Mr Vu agreed that he had dropped out of counselling in the past. He said that the early counselling was not particularly helpful. As part of his community service, he was allocated to do work at a Buddhist temple and the monks there encouraged him to try meditation as part of his counselling. He said that he had not found it helpful. He said that the counselling he received most recently, in 2006, through the CREDIT/Bail program had been the most beneficial, as he now felt there was someone to turn to and understood. Mr Vu conceded he had lapsed into heroin use again in August 2006. He said it had only been for a week when he found out about his mother’s death. When asked why he did not seek help from his Catholic parish, he said that he could not for a number of reasons. He said that his English was not good enough. Moreover, he felt he could not tell strangers about the shameful things he had done. Furthermore, if people were aware of his circumstances, it might impact on people’s attitudes to his sons who attended local schools.
17. Mr Vu said that he and his wife had not divorced, even though they are permanently separated. There are no Family Court orders. There had been maintenance paid through the Child Support Agency when Mr Vu was working or on unemployment benefits. He also provides money for his children when he can. He said that he and his wife do not speak to each other directly these days but communicate via others on issues of importance concerning the children.
18. Mr Vu said he is still a practising Catholic. He regularly attends Mass. He said that he is still very afraid that he could be in trouble if he is forced to return to Vietnam. He said that he would need to return to his hometown, as he has no support in any other part of Vietnam. He does not know where his elderly ill father is. It is his belief that the Vietnamese government still treats Catholics in his home region badly. Mr Vu said that he is sorry for breaking the law in Australia. He said that he has always admitted his wrongdoing to police and has been punished through his jail sentences. He realises that if he were to start using heroin again and commit further offences he would lose contact with his sons and have to return to a country that he left 20 years ago, where he has no family, no close contacts, no work or any real future. He stated that he is committed to the counselling programs that have now been made available to him. He realises that there are people who are prepared to help him overcome his weaknesses and psychological problems.
19. Dung, Mr Vu’s elder son who is aged 14 years, provided a statement dated 21 March 2007. He stated that he is an Australian citizen. He is in year 9 at school. Dung stated that his parents lived together until he was in grade 4. He indicated that apart from the time that his father was in prison, he and his younger brother saw him often. They would meet their father at their grandmother’s home or the home of a family friend. They would usually play computer games there or at the local shopping centre. They would talk about things and their father would tell them off for doing the wrong thing. Dung said that he loves his father and respects him. He would feel terrible if not allowed to see him any more. He indicated that he knows that his brother Viet feels the same way. Dung stated that he would have liked to have been at the hearing but was leaving for Vietnam for 3 weeks with his grandmother. It is his first trip to Vietnam since grade 4 when both brothers travelled there. He stated that he and his brother want to be able to see their father when they want to and need to, and expressed the hope that his father's visa would not be cancelled.
20. Thuy Thanh Le provided a written statement and oral evidence. Ms Le came to Australia as a student in 1999 and later married an Australian citizen. She has two daughters, aged five and seven respectively. Ms Le’s husband met Mr Vu when they were both in the refugee camp in Hong Kong. Ms Le first met Mr Vu when he was living in Sydney and came down to Melbourne for a visit. After Mr Vu moved back to Melbourne permanently he would often call around to her home for a meal. Ms Le’s home is close to the home of Mr Vu’s estranged wife and children. Ms Le has often looked after Viet and Dung. Ms Le said that Mr Vu’s wife still asks about Mr Vu even though she is now in another relationship and her boyfriend does not want to have anything to do with Mr Vu. Ms Le said that she and her husband are aware of his Mr Vu’s convictions and heroin habit. She described him as a gentle person who was a good father and good friend, despite his weaknesses.
21. Ms Le said that she visited Mr Vu in prison during his most recent sentence. She said that he did not want his sons to see him in prison because he was worried about how it would affect them. She said that Mr Vu had no family in Australia, apart from his wife and sons, and so she felt it important to visit. She said that he had told her of his fear of being separated from his children as well as his fear of what might happen to him if he returned to Vietnam.
22. Ms Le gave the opinion that Mr Vu and his sons were very close. She stated that Dung, in particular, was very stressed and anxious about being permanently separated from his father. She said that he feels very insecure. She said that Dung blames his mother for his father’s situation. Mr Vu had told Dung that this was not the case and had also straightened out his son when he had lashed out and acted inappropriately. Ms Le said that their father was very important in the boys’ lives. Challenged for the basis for her comments, given her lack of formal qualifications, Ms Le said that she was a mother herself and had observed the relationship between father and sons over a period of time. She knew all of them well.
23. Loc Van Pham, a drug counsellor, provided a written report dated 11 January 2007. Mr Pham runs a specialist drug program for persons of Vietnamese background. He has post-graduate qualifications in counselling and many years of experience. In his oral evidence Mr Pham stated that his first contact with Mr Vu was in 1998 when he was referred to his service by a community support group. Mr Vu undertook a seven day residential withdrawal program using naltrexone. Mr Pham understood that Mr Vu was drug free for a time, before another relapse following his marriage breakdown. After questions about subsequent relapses, Mr Pham said that a history of drug use, drug free periods and relapses was quite common among those who were heroin dependent. Mr Pham said that sometimes he sees a person coping well one day but something would occur that lead to a relapse the next day. He said that Mr Vu had only recently revealed something of his background. Mr Pham said it was not his role to force people to open up to him about their past traumas. Rather he concentrated on the future, trying to provide assistance to clients in overcoming their drug addictions. It was his opinion that Mr Vu now has a strong commitment and incentive to avoid lapses. He is responding well to the combination of methadone and counselling. Mr Pham said that the nature and availability of counselling and treatment for Vietnamese-speaking persons had improved markedly. In 1998 Mr Pham had been the only person available, with very limited resources. The style of counselling had improved as had the methadone monitoring program.
24. Mr Guy Coffey, a clinical psychologist with The Victorian Foundation for Survivors of Torture Inc (the Foundation) gave written and oral evidence about his assessment of Mr Vu. Mr Coffey said that Mr Vu had been referred to the Foundation by the psychologist at the IDC as a result of concerns about Mr Vu’s depression. He recounted the history given to him by Mr Vu during three assessments in February and March 2007. The history was consistent with the evidence given by Mr Vu in examination-in-chief and cross-examination. Mr Coffey’s concluding comments as to Mr Vu’s rehabilitation prospects, in his report dated 9 March 2007, are as follows:
…
I should direct some concluding remarks to Mr Vu’s rehabilitation. He claims that he currently does not have any desire to use heroin and that the methadone treatment he is undertaking is in this respect effective. I have little doubt that underlying his heroin use were untreated psychological conditions which were the sequelae of his traumatic premigration experiences and that these created a vulnerability to the stresses of settlement. Vietnamese refugees in Australia and elsewhere have been extensively studied and we know that a traumatic history does not automatically lead to longer term psychological difficulties and unsuccessful adaptation. In fact the vast majority of Vietnamese refugees in their countries of adoption do not suffer from a mental illness and have adapted psychologically and economically very successfully. However this success is far more likely where there are intact family supports, and an absence of extended childhood exposure to social dislocation. As an adolescent Mr Vu underwent a prolonged period where he had no benign and nurturing social support. He then on arrival in Australia appears to have received neither guidance and support from mature people he could trust nor the professional psychological treatment that he needed. It appears to me that Mr Vu's criminal offences have been largely a consequence of his need to support his heroin use and that his heroin use was his attempt to deal with untreated psychological difficulties. The alternative is that he possesses personality deficits that allow him to disregard the law when that serves his purposes, but I didn't see any evidence in my interviews with him that his offences spring from a broader characterlogical disturbance. He does not display any traits suggesting that he is lacking in empathy, is particularly self entitled and egocentric, or antisocial. I would conclude therefore that his capacity for rehabilitation is reasonable provided he receives adequate treatment. This would involve both treatment from specialised drug and alcohol services for several years and treatment for his underlying psychological conditions at an agency such as ours. It appears that he benefited from the CREDIT/Bail program he entered in may 2006 involving counselling and methadone treatment. The report from that service notes his willing engagement in counselling and that he takes addressing his offending seriously. On the latter point, I would concur. Mr Vu was convincing in his account of wanting to do something to prevent further lapses into drug use and crime. The prospect of deportation has undoubtedly concentrated his mind on the consequences of recidivism, however he does appear to possess a growing appreciation of what he has lost as a consequence of drug use - his marriage, and for extended periods, his liberty - and what he may further lose - contact with his children and residency in a country where he can be safe. My opinion must be cautious given the number of times he has slid back into drug use, but I think this constellation of incentives combined with his growing maturity will provide a firm basis for him to engage in successful treatment. If he is able to manage his difficulties without resorting to drug use I think the likelihood of him re-offending is low…
25. Mr Coffey told the Tribunal that it will take several years of effort on Mr Vu’s part to manage his problems. He said that Mr Vu’s pattern of relapses so far was not uncommon in people with his background and history. Mr Coffey said that the Foundation believed Mr Vu was a priority case and would be able to start his program forthwith. There would be no cost to Mr Vu as the Foundation has been set up for refugees like Mr Vu who had unresolved issues to deal with, and receives government funding for its programs. Mr Coffey said that Mr Vu would have to commit to regular participation in both drug counselling and utilising the services of the Foundation as well as possible psychiatric treatment. Mr Coffey said that he was guardedly optimistic that Mr Vu would succeed in overcoming the psychological, drug and criminal issues. He could not do so on his own because he had shown that he could not change his lifestyle and coping mechanisms without support. Mr Coffey said that if Mr Vu were to have a relapse, it would quickly be picked up and dealt with by the Foundation or his drug counsellor. Mr Coffey believed that Mr Vu was now highly motivated as he faces up to not seeing his children grow up, as well as having to return to a country where he is genuinely, subjectively, fearful about what might happen to him and where he has no support.
26. The Tribunal was presented with reports prepared by the Commonwealth Department of Foreign Affairs (DFAT). It was also provided with the United States Department of State: 2005 and 2006 Country Reports on Human Rights Practices (the US Report), concerning the availability of treatment for drug dependence in Vietnam; the likelihood of persecution for a person deported back to Vietnam who has committed crimes in another country; religious persecution and other matters relevant to this application. These reports were cited in two reports prepared by an officer in the Department of Immigration and Citizenship (DIAC) entitled International Obligations and Humanitarian Concerns Assessments prepared in December 2006 and March 2007 respectively. Aspects of those reports are cited in the Tribunal’s deliberations below.
CONSIDERATION OF THE ISSUES
27. Under s 501(2) of the Migration Act 1958 (the Act), the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he or she passes the character test (s 501(2)(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 in s 501(6)(a)‑(d) is met. Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection 7). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
28. There is no dispute between the parties that Mr Vu does not pass the character test in s 501(6)(a) of the Act. Therefore, the Tribunal finds that Mr Vu does not pass the character test in s 501(6)(a) of the Act.
29. Under s 499(1) of the Act, the Minister may give 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.
30. On 23 August 2001 the Minister, exercising powers under s 499(1) of the Act, issued Direction N° 21, Visa Refusal and Cancellation under Section 501 of the Migration Act 1958 (Direction 21), which provides guidance to decision‑makers in making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non‑citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.
31. Paragraph 2.2 of Direction 21 concerns the weight that should be given to various factors in deciding whether to cancel a visa. It provides that:
….a decision‑maker should have regard to three primary considerations and a number of other considerations… 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.
32. Paragraph 2.3 of Direction 21 sets out the primary considerations:
2.3 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.
33. Paragraph 2.4 of Direction 21 explains:
2.4 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. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs or crimes of violence…
34. Paragraph 2.6 of Direction 21 sets out examples of the matters that the Government views as very serious offences. These include:
(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:
…
·Offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community;
…
35. Paragraph 2.8 of Direction 21 states that when exercising the discretion, decision‑makers must take into account any relevant factors provided by the non‑citizen as mitigating factors. Paragraph 2.10 concerns consideration of the likelihood that the conduct may be repeated (including any risk of recidivism):
It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment:
(a)a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;
(b)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. In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; and
(c)the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may be reasonably expected to make.
36. Paragraph 2.11 of Direction 21 refers to the likelihood that visa cancellation may deter other persons from committing like offences i.e. general deterrence.
37. Paragraph 2.12 of Direction 21 concerns the expectations of the Australian community. The Minister points out that the Australian community expects non‑citizens to obey Australian laws while in Australia. The nature of the character concerns or offences need to be taken into account in assessing whether a person should be removed from Australia.
38. Paragraphs 2.13 to 2.16 of Direction 21 consider the best interests of the child who is less than 18 years of age when the decision comes into effect. In general terms (paragraph 2.15), the child’s best interest will be served if the child remains with its parents unless there is evidence of abuse, neglect or the like. Paragraph 2.16 sets out particular matters the decision maker should have regard to:
(a)the nature of the relationship between the child and the non-citizen;
(b)the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;
(c)the age of the child;
(d)whether the child is an Australian citizen or permanent resident;
(e)the likely effect that any separation from the non-citizen would have on the child;
(f)the impact of the non-citizen’s prior conduct on the child;
(g)the time (if any) that the child has spent in Australia;
(h)the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go , or return to, should the non-citizen not be permitted to enter or remain in Australia;
(i)any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(j)any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.
39. Paragraph 2.17 of Direction 21 states that, when considering the issue of visa refusal or cancellation, other considerations may be relevant, although they will generally 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; the degree of hardship caused to immediate family members; the family composition of the non‑citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and whether the application is for a temporary visa or permanent visa. Previous consideration of exercise of the deportation powers under s 501 of the Act against the non-citizen is also relevant.
40. The Commonwealth’s international obligations also need to be taken into account (paragraphs 2.18 to 2.23). These include the International Convention on Civil and Political Rights (ICCPR), which has an implicit non-refoulement obligation; where as a necessary or foreseeable consequence of their removal or deportation from Australia, the person would face a real risk of violation of his or her rights under Articles 6 or 7 concerning right to life or freedom from torture or inhumane punishment. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) also has an explicit prohibition against refoulement where there are substantial grounds for believing the person would be in danger of being subjected to torture. These provisions of the ICCPR and CAT are absolute and are not balanced against other considerations if cancellation of a visa would result in breach of the provisions. The Convention and the Protocol Relating to the Status of Refugees (the Refugees’ Convention) must also be considered in the decision making process.
41. In considering whether to exercise its discretion under s 501(2) to cancel his visa the Tribunal has had regard to Direction 21.
Protection of the Australian Community, and Members of the Community
42. In respect of the first primary consideration, concerning protection of the Australian community, the Tribunal notes that Mr Vu has a criminal history from 1998 to 2006 with charges relating to drugs, theft and unlicensed driving. The offences involving heroin constitute very serious offences (paragraph 2.6 of the Direction), and as such are serious conduct against the community. The Tribunal accepts Mr Vu’s evidence that his acquisition of heroin was always for personal use. His shoplifting appears to be primarily related to his dependence on heroin. His common assault charge involved attempting to get away from a security guard in a store. There is no evidence that there was any injury to the guard and the sentence imposed was not a heavy one for that offence. Mr Vu’s solicitor submitted that his client has not been involved in any violent crimes.
43. On the issue of the risk of recidivism, the Tribunal notes that Mr Vu has been before the courts several times since 1998. The early sentences involved community service, drug treatment and counselling. There were two suspended custodial sentences which expired without further charges. However, he has now had two jail sentences in excess of 12 months, which he has served. He was eligible for, and granted parole, in both cases. Mr Vu pleaded guilty to the offences and told the Tribunal that he deserved punishment. He appears genuinely repentant.
44. Notwithstanding his strongly expressed intention in 2005 to avoid future crimes, when he was issued with notice of his potential deportation, Mr Vu offended again less than 2 years later after receipt of that notice. Paragraph 2.10(a) directs that this situation is a relevant factor to consider when assessing the likelihood of recidivism.
45. Mr Vu gave evidence that he had no idea that any of his offences could result in deportation until he was given the 18 month sentence in 2004 in New South Wales. He did not receive any warning of the potential impact on his ongoing residence in the country until he was issued with a notice towards the end of that sentence. However, in the Tribunal’s view, that does not provide any excuse for his subsequent breaches of the law, or for treating him leniently. Mr Vu’s further offences in 2006 indicate that the warning about potential cancellation of his visa did not result in him avoiding any future convictions. Furthermore, despite gaps in his convictions, an overview of Mr Vu’s criminal history would lead most people, including the Tribunal, to the conclusion that there is a risk of recidivism.
46. However, the Tribunal notes that Mr Vu is now in a different situation in terms of access to rehabilitation to that at the time of his earlier convictions. Mr Coffey, a clinical psychologist with extensive experience in dealing with refugees with drug dependence and psychological problems, indicated that Mr Vu needs psychological and possible psychiatric assistance. Mr Coffey indicated that Mr Vu can access treatment through the Foundation which has been set up to assist refugees who have suffered trauma and require intensive specialised assistance to overcome their ongoing difficulties. Mr Vu has not been offered any such assistance since he arrived in Australia on a refugee visa at the age of twenty-two, having left his home and family some seven years earlier. His early years in Australia were not easy, with poor English, little education, low income and a wife who suffered from illness.
47. Mr Vu has now maintained his methadone program for several months, apart from a one week lapse that led to his current predicament. Mr Pham gave evidence that he believes that Mr Vu may well succeed this time. He indicated that Mr Vu can continue to access specialised counselling. Both Mr Pham and Mr Vu gave evidence that Mr Vu’s pattern of being drug free for a period and then lapsing into use is quite common amongst those trying to give up addictive drugs. However, they were both reasonably optimistic that Mr Vu may well be successfully rehabilitated this time, given his increased insight into his problems, and motivation in terms of wanting to see his sons grow up. The Tribunal believes that there is still a risk of recidivism but that risk is now less than it has been in previous years, given the additional support available to Mr Vu, his additional motivation in terms of his children and his subjective fear of returning to Vietnam.
48. In relation to general deterrence, the Tribunal takes into account the comments made by the Tribunal in Re Otene and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 142 and Re Peters and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 585 and concludes that general deterrence is not a major factor in the circumstances of this matter.
The expectations of the Australian Community
49. In respect of the second primary consideration, concerning expectations of the Australian community, the Tribunal notes that the Australian community expects that non‑citizens will obey Australian laws while in Australia. The Tribunal takes into account the seriousness and frequency of the offences committed by Mr Vu during the relevant period. However, many Australians who were aware of his background and the circumstances in which he offended would expect a humane and compassionate approach to be taken.
50. Mr Vu was imprisoned for four months because of his involvement in religious activities associated with his local Catholic church when he was fifteen years old. He was mistreated and has permanent mental and physical scars as a result. He fled Vietnam in a boat unaccompanied by anyone he knew. He did not see or talk to his mother, father or siblings again. He spent almost five years in a refugee camp. Refugee camps have been widely acknowledged as difficult places to live. Mr Vu became a father and a husband when he was only 19 years old. He arrived in Australia with a wife and two children, the younger only three months old. His general education stopped when he was imprisoned. He was given English language classes and assistance in settling down when he first arrived in Australia. However, three years after his arrival, his wife was diagnosed with what appeared to be a life-threatening illness and then had a miscarriage. Friends suggested a way of relieving his stress was with a cigarette that contained heroin. Mr Vu then began an on‑again off-again dependence on a substance that made him feel good for a time. He continued to work for a while but eventually could not afford to feed his habit and turned to crime, mainly shoplifting, as a means of funding his addiction.
51. Mr Vu has had periods of months and years when he has not used heroin and has not committed crimes. He has tried different means of stopping his use of heroin including rapid residential withdrawal through naltrexone; various forms of counselling; moving interstate away from bad influences; cold turkey and methadone as a heroin substitute. He is currently utilising methadone. If he is not deported, he intends to resume counselling and receive specialist assistance from the Foundation. He has been offered employment. The threat of deportation that has been hanging over him for some months now, as well as his detention at the IDC rather than his release into the community on being paroled in January 2007, have also had a sobering effect on him.
52. Given the circumstances of his arrival in Australia as a refugee and the difficult issues he has had to deal with since then, including not seeing his late mother since he left Vietnam, the breakdown of his marriage, the fear of returning to Vietnam and lack of any family support in Vietnam, the Tribunal is of the view that many members of the Australian community would want him to be given another chance at rehabilitation. The information from DFAT and the US reports indicates that things have improved in Vietnam since Mr Vu left, but there are still restrictions on freedom of worship. There are officially registered churches, including Catholic churches, but their activities are restricted. Mr Vu genuinely holds a subjective fear of what might happen to him given his experiences long ago. In terms of ongoing treatment to avoid a relapse into drug usage, there are limited treatment services available outside Ho Chi Minh City. It is unlikely that the treatment regime available anywhere in Vietnam is as sophisticated as that available to Mr Vu here. There would certainly not be access to the program that will be given to him through the Foundation. Mr Vu was not aware of the availability of the services of the Foundation until the IDC referred him in February 2007.
53. Articles concerning usage of Illicit drugs appear in the press and on television daily. Many members of the community have been affected by drug usage by family, friends or acquaintances. Prominent people who have problems with illicit drugs are given public exposure on a daily basis, be they champion footballers, popular singers, movie stars, fashion models, or the family of a young person who has taken what appeared to be a harmless pill that had lethal effects.
54. When it comes to drug-related crime, the Tribunal believes that the Australian community is not uniform in its views towards the person who commits a crime as a result of his addiction. It is widely known that a large proportion of the inmates in Australian jails are there because of their drug habit. Specialist drug courts have been set up in acknowledgement of the link between drug addiction and crime. These drug courts are linked to treatment and other services. Victorian Governments of both political persuasions have adopted a harm minimisation approach for many years, recognising drug usage as being a health issue as well as policing matter. While acknowledging the health issues, the Australian government has often asserted that there should be zero tolerance in relation to drug usage. The Tribunal concludes that the Australian community has a variety of views as to how far it should go in dealing with individuals who have resorted to crime because of a drug habit. Mr Vu has said that he stole from businesses not people. However, stores are run by people whose livelihood is impacted by those who shoplift. On the other hand, Mr Vu has not been involved in violent crimes such as burglaries, armed hold-ups or the like, that are the more high profile drug-related crimes that come to public attention. The Tribunal is of the view that a significant section of the Australian community would be prepared to give Mr Vu one more chance under the proposed rehabilitation scheme.
The Best Interests of the Children
55. Mr Vu’s two children are currently 14 and 12 years old respectively. They are Australian citizens. Until the breakdown of his marriage in 2001, Mr Vu lived with his children in the same household. Since then, he has maintained contact with them except when he was in jail. There was evidence from Mr Vu, Ms Le and Dung, the older son, that Mr Vu spent time with the children every week or every second week. When living interstate, Mr Vu telephoned the boys regularly. He also visited them when there was a break in his work. When the harvest had been completed on the tomato farm he worked on in Queensland, he came back to Melbourne for a three week visit. The children have visited him at the IDC and he has been allowed on an outing with them outside the IDC.
56. Evidence before the Tribunal indicates that the children have not taken the news of their father’s possible permanent departure well. Ms Le described the behavioural impact on Dung in particular. He has started blaming his mother for his father’s woes and has become quite emotional. Mr Vu would be unlikely to be able to afford the fares for his children to visit him in Vietnam during holidays even if he had appropriate accommodation for them. The respondent suggested Mr Vu could maintain telephone contact but that is not the same as spending time with their father on a regular basis. A telephone call is not a substitute for physical contact; nor is a possible visit every few years to Vietnam the same as spending time with your father on most weekends. The Tribunal observed the interaction between Mr Vu and Viet during the hearing and it seemed warm and loving on both their parts.
57. The children’s mother has been their primary carer and it seems improbable that the children would move to Vietnam with their father. Dung was two years old and Viet was three months old when they arrived in Australia. Neither of them has experienced life anywhere but Australia. Both children visited Vietnam a few years ago and Dung is now there on a three week visit, his second, with his grandmother.
58. The Tribunal concludes that the children’s best interests are best served by regular contact with both parents. The Tribunal has no reason to doubt that Mr Vu would maintain, and possibly increase, his contact with the children. Given the children’s ages and the limited financial resources available to Mr Vu, there is no realistic prospect that Mr Vu would be able to maintain satisfactory direct contact with the children if he was forced to return to Vietnam. The Tribunal concludes that cancellation of the visa would be a powerful barrier to Mr Vu playing a significant role in his sons’ lives.
Other Relevant Considerations
59. Mr Vu has an ailing elderly father in Vietnam. He does not know where his father is. His mother has died, as has his sister. He has no idea what has happened to his brother since his brother’s imprisonment some 19 years ago. He has not returned to Vietnam since leaving as a 15 year old. He has never worked in Vietnam nor does he have a home to go to. While the level of religious persecution in Vietnam appears to have lessened since he left, Mr Vu’s subjective fear of being mistreated for his religious practice or his Australian criminal record upon his return appears to be genuinely held. Mr Vu arrived in Australia as a refugee following assessment by the UNHCR. He has spent more than half his life in Australia. If he is deported, Mr Vu would be returned to a country from which he escaped in dangerous and difficult circumstances and to which he has no wish to return.
60. On the other hand, Mr Vu was warned only two years ago that any further convictions would be likely to result in his deportation. He went back to his old ways, shoplifting to fund illicit drug acquisition. He appears to be heading down the rehabilitation track again, albeit with a risk of recidivism if he does not stick to the program that will be mapped out for him by the Foundation and the drug treatment agency, when or if released from the IDC.
International Obligations
61. Mr Vu arrived in Australia as a refugee, recognised as such by the UNHCR under the Refugees Convention. Its provisions and those of the ICCPR and CAT are applicable to him. Both representatives provided conflicting information about the risk of refoulement. Mr Vu has a subjective fear of further persecution if he were to be returned to Vietnam. However, the Tribunal believes an assessment of the actual risk he would face under the relevant conventions would take a considerable amount of research. The Tribunal has only a limited time to deal with this application due to legislative timelines. Given the Tribunal’s decision in this matter, it will not make any findings on the risk of refoulement.
CONCLUSION
62. There are many factors to weigh up in this matter, both positive and negative. Mr Vu’s track record of criminal convictions over several years for similar crimes does not of itself inspire strong confidence in his ability to reform. He was fortunate to be given another chance following his 2005 sentence. He was forewarned about the consequences of another conviction yet he broke the law again. He has been given access to drug treatments and counselling but failed to follow through on the opportunities. On the other hand, there are many people in the Australian community who have succumbed to drug dependence and committed crimes to pay for their habit. Mr Vu has had several periods of abstinence since 1998. He has worked for considerable periods between offences. He now has the opportunity for assistance from the Foundation. His detention at the IDC has resulted in access to the highly specialised services of the Foundation of which he was not previously aware. He now has a very high level of motivation to succeed, given the consequences of failure. The Tribunal gives great weight to the interests of Mr Vu’s children. It is satisfied that it is clearly in the best interests of his children to have ongoing contact with their father. It is clear that he cares about them and they about him.
63. In weighing up all the circumstances of the primary considerations and then the secondary considerations, the Tribunal concludes, for the reasons given, that it should exercise the discretion not to cancel Mr Vu’s visa on character grounds.
DECISION
64. The Tribunal sets aside the decision under review and in substitution decides that the visa held by Mr Vu should not be cancelled on character grounds.
I certify that the sixty four [64] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Olympia Sarrinikolaou
Clerk
Dates of hearing: 29 & 30 March 2007
Date of decision: 10 April 2007
Advocate for applicant: Mr C. Powles
Solicitor for the applicant: Refugee and Immigration Legal Centre
Advocate for respondent: Ms K. Miller
Solicitor for the respondent: Australian Government Solicitor
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