Vu v Minister for Immigration and Multicultural Affairs

[1999] FCA 1850

FEDERAL COURT OF AUSTRALIA

Vu v Minister for Immigration & Multicultural Affairs [1999] FCA 1850

NGOC DUONG VU v MINISTER FOR IMMIGRATION & MULTICULTRUAL AFFAIRS

N 1057 OF 1999

EINFELD J
15 DECEMBER 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1057 OF 1999

BETWEEN:	NGOC DUONG VU Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	EINFELD J
DATE:	15 DECEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant arrived in Australia with his wife and eldest daughter on 12 October 1994 under a refugee visa.  He had been in the North Vietnamese Army and was sent to the Vietnam/China border.  He opposed government policy and deserted from the Army of the North, but before he could be found by the authorities, he escaped to Hong Kong where he was when he obtained his visa to Australia. 

2. He has had some difficulties in Australia, not least in obtaining employment, because of his unfamiliarity with English, although he did obtain some form of process work.  Then on 14 December 1996 he committed an offence by attempting to possess a large quantity of heroin when visiting the house of a friend to which the heroin had been posted.  It seems that the applicant was not intended to be the receiver of the heroin for himself, but to be some form of courier by transporting it from the house to which it had been sent to someone else.   In fact, the heroin had been contained inside the lining of a black suit jacket which was contained in the parcel that had been posted.  The amount of heroin involved was 275 grams, a large quantity.  An indication of its value, so far as the applicant was concerned, can be gleaned from the fact that when his friend, the recipient, refused to give him the jacket because he had taken it to the police already, he offered him $5000 for the parcel.  He was charged with two offences, and arraigned on 22 September 1997.  Whilst being convicted of the charge of attempt to possess, he was acquitted of the charge of being knowingly concerned in the importation of the heroin.

3. Nevertheless, the remarks of the trial judge on the sentence revealed the offence as serious.  He noted that the applicant showed no contrition for the offence and regarded the custodial sentence which he imposed as being a deterrent to both the applicant and other persons who might think of committing similar crimes.  The judge convicted and sentenced the applicant to five years' imprisonment with a non-parole period of three years.  By this time, the applicant and his wife had had a second daughter.  The non-parole period expired yesterday, and the applicant is now in immigration detention.  Following upon his conviction, the Department of Immigration wrote to the applicant, informing him that he was liable to be deported because of the conviction and inviting him to present reasons why this should not occur.  He was in fact interviewed in this connection by government officials, and subsequently, in June 1999, he was again told by letter that the Minister was intending to consider the question of his deportation.

4. In due course, the Minister decided to deal with the matter personally.  On 17 August 1999, because of the seriousness of the applicant's history, he determined that the applicant should be deported and also determined that he should be declared an excluded person, which, for relevant purposes, means only that the applicant could not submit his case for merits review to the Administrative Appeals Tribunal.

5. Then, on 18 October 1999, the applicant filed an amended application for an order of review in the Federal Court. No objection is taken in the present case to the jurisdiction of the Court to deal with the matter, and I have therefore proceeded upon the basis that the Court is able to deal with the matter under the Administrative Decisions (Judicial Review) Act without examining in any detail the existence and nature of the jurisdiction. Other Judges have considered the matter in other cases, but it is not necessary in this case to re-visit those expressions of opinion.

6. During the case management part of this case, the applicant was represented by a solicitor who attended at the directions hearing when today's date was fixed for the hearing.  Subsequently, he and the respondent were directed to file submissions in writing on the case by – in the case of the applicant – last Thursday, and, in the case of the respondent, by Monday of this week.

7. No submissions were made by or on behalf of the applicant.  The respondents' submissions, without having the benefit of any details from the applicant, were filed today.  The amended application for review reveals nothing of the applicant's case.  In order, therefore, to get an understanding of what the applicant wished to argue, I allowed him to present his own case in detail today even though much of it had nothing to do with the application before the Court at all.  I have also read in detail the departmental file on the matter, including the matters which the applicant put to the departmental interviewers who spoke to him and his wife in preparation for the Minister's consideration of the deportation.  I have also had the opportunity of considering the departmental advice to the Minister which, if I may say so, very fairly and comprehensively reviews the considerations which the Minister was bound to take into account.

8. In response apparently to an informal request by the applicant's solicitor to the Australian Government Solicitor, the Minister voluntarily provided reasons for his decision on 24 November, and I have, of course, read those reasons with some care and in detail.  The applicant has appealed to me to show compassion in particular to his wife and children.  The government is not proposing the deportation of his wife and children, so that if he is deported and they do not return to Vietnam with him, it is inevitable that they will be separated certainly for some time, perhaps forever.

9. In his reasons, the Minister has considered this rather extreme result and the effect on the children in particular of separation from their father.  The youngest child is now only 3 years old, and the Minister says in this connection:

   I was particularly mindful of the fact that deportation would break up the family unit and any separation could lead to the children gradually drifting apart from their father over the years.

10. The applicant's wife is an Australian permanent resident, in relation to whom the Minister said:

    I accepted the fact that deportation would, in all likelihood, terminate the relationship, thereby imposing further hardship on Mrs Tran.

11. He took into account, of course, that the applicant himself would also suffer emotional and other hardship if he was deported from Australia.  His view that, nonetheless, the applicant should be deported was based upon the following factors: firstly, the gravity of the offence committed; second, the amount of heroin involved; third, the serious view of the offence reflected in the sentence imposed by the Court; fourth, the significant harm that the illicit drug trade does to the Australian community; and fifth, the risk posed to the Australian community by the applicant's continued presence in Australia, by which he meant the possibility, which he did not regard as slight, that the applicant might offend again.

12. The Minister also took into account the expectations of the Australian community in relation to crimes of this kind committed by persons who are permanent residents, to the absence of any contrition, and to the fact that there was no evidence that the applicant had co-operated with law enforcement agencies to track down other offenders.  The applicant was not a drug addict and the heroin was not for his own use.  It was also appropriate to consider the fact that his very definition as a refugee meant that he had undergone considerable hardship and persecution, and of course it is never easy for people to re-establish their lives in a foreign country where the language and culture are completely different, especially for people such as the applicant with minimal professional skills.

13. The applicant has said in Court today that if he were deported to Vietnam he would more than likely be executed because while he was in the refugee camps in Hong Kong he committed treason against Vietnam.  This very serious matter has never once been mentioned before and, although the applicant says that that was because he was never asked, it is clear to me from the interviews which he had with the authorities over the years that there was ample opportunity for him to mention this matter if it had been true.

14. It is not even clear how the authorities in Vietnam would know of anything he did in the refugee camps in Hong Kong, and although Vietnamese justice is unlikely to reach the standards applicable in Australia, it is also difficult to see how the Vietnamese authorities  would be able to gather even the slightest semblance of evidence to support any such assertion.  The refugee camps in Hong Kong are now empty.  Many of their former inhabitants are in various countries of the world and, although some were returned to Vietnam itself, it would be highly coincidental if the applicant finished up in any part of Vietnam near anyone who had come from the camps in Hong Kong.

15. This is especially so because the applicant has elderly parents and other relatives in Vietnam with whom he will no doubt be in contact.  According to the papers there was at some stages a difficulty in having Vietnam receive back persons who were deported from other countries for illegalities, but I am informed now that the position is negotiated between the two governments on a case by case basis.  In any event, that matter cannot figure as a matter to be taken into consideration here.  On the contrition question, the applicant has sought to express some contrition today.  No doubt, having served three years in prison and facing deportation, he does feel contrite.  But the type of contrition to which the law gives expression and recognition is contrition for committing an offence at the time or soon after the time when it was committed.  It is a little late, several years down the track, to be talking about contrition now.

16. The Court's jurisdiction, as I said at the beginning, is constrained by the provisions of the Administrative Decisions (Judicial Review) Act. Section 5(1) of that Act provides that review of administrative decisions can be made on a limited number of grounds, nine in all. The applicant has not in his submissions identified any one of these grounds for review. Whilst the filed application for review mentions two of them, it does not identify any arguments to support them. I have considered all of the grounds as a possible basis for reviewing the Minister's decision, but have been able to find no basis for doing so.

17. As I explained to the applicant during the course of the case, this is not an appeal from the Minister's decision in the sense that the Court can simply hear the matter afresh and decide the issue itself.  The Parliament has decided that the overall decision is to be made by the Minister and that any compassionate or humanitarian matters have to be taken into account by him.  They do not permit the Court to substitute itself as the decision maker; or, except in the most limited circumstances, substitute its own decision for the Minister's decision.  For all those reasons the application must be dismissed.

    [AFTER DISCUSSION]

18. The application will be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld.

Associate:

Dated:            15 December 1999

The applicant appeared in person with the assistance of Mr Paul Ho (interpreter)
Counsel for the Respondent:	Mr G. T. Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 December 1999
Date of Judgment:	15 December 1999