Tai Tan Nguyen and Minister of Immigration Multicultural Affairs [1997] AATA 404 (21 October 1997)

ADMINISTRATIVE APPEALS TRIBUNAL

TAI TAN NGUYEN v. MINISTER FOR IMMIGRATION MULTICULTURAL AFFAIRS
No.
V97/861
AAT No. 12324
Number of pages - 6
Migration

COURT

ADMINISTRATIVE APPEALS TRIBUNAL

GENERAL ADMINISTRATIVE DIVISION

G.L. McDONALD (Deputy President)

CATCHWORDS

Migration - deportation - applicant convicted of numerous petty offences - offences arising from applicant's drug use - deportation policy/balancing of requirements - offences not within categories deemed to be grave - Migration Act 1958 ss. 200, 201

Migration Act 1958 ss. 200, 201

HEARING

MELBOURNE, 21 October 1997 (hearing and decision)

21:10:1997

ORDER

The decision under review is set aside, and the matter is remitted to the respondent with a direction that the deportation order of 2 March 1997 be set aside.

DECISION

G.L. McDONALD

1. This is an application for the review of a decision dated 2 March 1997 to deport you from Australia.

2. I am satisfied that the prerequisites arising under the provisions of s.201 of the Migration Act 1958 ("the Act") are fulfilled, i.e.

* you are a Vietnamese citizen and not an Australian citizen,

* you were in Australia just under the maximum 10 year period, provided for in s.201(b)(i) as a permanent resident, when the deportable offences were committed. The record of your entries into Australia, set out at T documents page 59, is uncontested and I accept its accuracy,

* you were convicted after a plea of guilty, and sentenced in the Perth Court of Petty Sessions on 25 May 1993, for the following offences

- entering premises on or about 16 April 1990 and stealing a) wallet, credit cards and purse - 21 months imprisonment

- 20 April 1993 entry of property with intent - 21 months) imprisonment

to be served with other offences, i.e. you have been sentenced to a term of imprisonment greater than the minimum 12 months provided for in s.201(c) of the Act.

3. A decision to deport a non-Australian citizen is a discretionary decision, which arises under s.200 of the Act. The exercise of that discretion is guided by Australia's Deportation Policy. That Policy is to be found in a statement made by the then Minister to the Australian Parliament on 24 December 1992. Unless there is good reason not to do so, generally the Policy will be followed by the Tribunal in review of deportation decisions. Clause 6 of the Policy nominates the protection of the Australian community from the possibility of further criminal behaviour along with expulsion from Australia of those non-citizens who have seriously abused the privilege of residence as being the circumstances when deportation will be considered. Clause 8 sets the factors to be balanced and nominates:

* the need for community protection against criminal behaviour,

* the need to consider the legitimate human rights of an individual,

* the need to protect the rights of other persons, including the family of the person concerned, and

* the need to avoid discrimination when making deportation decisions.

In reaching a decision to deport a person, the decision-maker is to be satisfied that the protection, safety and welfare of the Australian community will benefit by the removal of the convicted person when that removal outweighs the hardship to person concerned and/or to his/her family. Clause 12 of the Policy nominates examples of serious offences which may render non-Australian citizens liable to deportation. It nominates the production, importation and distribution, trafficking or commercial dealing in heroin or other hard addictive drugs or "involvement in other illicit drugs on a significantly large scale". But states "this does not necessarily apply to persons who use hard drugs for their own consumption who were not involved in the above illegal actions". The Policy makes it quite clear that the aim is to exclude from Australia those people engaged particularly in the dealing to make a profit from the import or supply of illicit drugs. The Policy goes on to nominate organised criminal activity, armed robbery, violence against the person, terrorist activity and assassination, kidnapping, blackmail, extortion and offences against children as falling into the example of serious offences for which deportation would normally be considered. Clause 19 sets out a number of matters to which regard may be had in the reaching of a decision to deport, including that in considering deportation a person's total criminal history should be given significant weight, that a person who has been previously warned and commits further deportable offences should expect the warning to be given serious weight, the nature of the crimes committed, the possibility of recidivism, the contribution the person may have made or may be expected to make to the Australian community, the strength of family and/or social ties, and the like. It is important to note that clause 20 of the Policy states that the potential deportation of an adult who arrived in Australia as a minor is a sensitive issue.

4. The offences for which you were convicted are set out on pages 35 to 38 (inclusive) of the T documents with some further offences set out in the further supplementary T documents (see pp.6, 12, 35). That record nominates a number of charges as being withdrawn and I have excluded those from my consideration of your record. You have been convicted of a large number of offences, including for stealing, burglary, unlawful possession of goods and possession of drugs of dependence and cannabis; added to those there is one conviction for indecent assault, one for assaulting police, convictions for disorderly type offences (e.g. indecent language, drunk, offence behaviour, etc) and some traffic offences. With respect to those offences, you have been variously fined, imprisoned and placed on community-based orders. Since 1986, the only year for which you have not been convicted of any offences was 1987. I accept with respect to the burglary and theft charges your offending was based on your need to obtain money to purchase drugs. In your oral evidence to me you confirmed that you have experienced problems with respect to the taking of heroin and other drugs. It seems that you have admitted involvement with offences and pleaded guilty when you have come to court. I note that on at least one occasion you did not attend court and a warrant was issued for your arrest. The record shows a persistent number of minor offences or in those cases such as indecent assault, where the offence may be more serious, the circumstances of your involvement are at the minor end of the scale. At one point in the evidence it was suggested that in relation to one transaction you were, in fact, trading in heroin. You have not been convicted of any such offence. Even although I appreciate that it was your own admission against your own interests, I am not prepared to conclude on that evidence that you are a dealer or profiteer from the sale of heroin. I do not regard the evidence led on this issue as being strong, and certainly I do not regard it as evidence of a consistent form of behaviour. It would be fair to describe your record as revealing that of a persistent and irritating offender, with the majority of offences relating to your need to obtain money to purchase drugs and/or offences committed whilst you may have been under influence of drugs. The longest term of imprisonment that you have received was two years which was constituted by the 21 months each for the breaking and entering offences, which you committed in Western Australia, along with several periods of three months imprisonment, to be served concurrently with each other but cumulatively with the 21 month imprisonment sentence imposed on that occasion. It is apparent from your record that, while on parole with respect to that sentence, you committed other offences. You have failed to answer your bail, e.g. in relation to the indecent assault charge.

5. You were born in 1966 and left Vietnam as a 16 or 17 year old in 1982, travelling first to Indonesia where you stayed in a refugee camp. You arrived in Australia as a refugee in 1982. I note your statement to a departmental officer at an interview in August 1993, that you say that you left Vietnam so as not to become a communist soldier (T docs, p.52). You first came to Perth because at that time you had two brothers resident there. Upon arrival you stayed with a friend of your brother and attended school in order to learn some English. From there, you travelled to Melbourne when your older brother transferred there. In addition to your two brothers in Australia you say you have five brothers, four sisters and your parents who have continued to live in Vietnam. I accept your evidence and that of your brothers that your eldest brother was killed while serving in the South Vietnamese Forces during the war with North Vietnam. I also accept that at the time you left Vietnam that that event and the involvement of your family in fighting with the South Vietnamese Forces against the North Vietnamese was a matter which your family perceived would result in adverse repercussions for them when the North eventually won the war. It was, no doubt, these factors along with the prospect of your being required to participate in military service at a time when hostilities existed between Vietnam and Cambodia which led to your family to encourage you and two of your brothers to flee Vietnam.

6. While you arrived in Australia as a refugee, I note that you have since returned to Vietnam for a visit (during the period 7 February 1993 to 16 April 1993) (T24). While you arrived as a refugee, the fact that you have voluntarily returned may have the effect of removing your status as a refugee under the provisions of the United Nations Convention on Refugees. In view of the conclusion I have reached with respect to your circumstances with regard to the Criminal Deportation Policy it is unnecessary for me to determine whether or not you have sustained your status as a refugee. Whether it does or not I must, however, in considering whether or not you should be deported take into account any adverse affects which may befall you if you are to be returned to Vietnam. I shall return to this aspect later in the decision.

7. Shortly after arrival in Melbourne, for a period of six months or one year, you worked at the Nissan car factory for a period of one year and at a plastic factory for a period of two years. You say that following a motor vehicle accident a friend of yours introduced you to drugs and thereafter you did not work for a period of approximately 10 years, until earlier this year you obtained short term employment at a bakery in Perth. During the period in which you were not employment, you received unemployment benefits.

8. I accept the evidence of Mr Hieu Nguyen, the Vietnamese social worker connected with the Brosnian Centre, that you have not attained a high educational standard. I also accept that there must have been considerable trauma associated with your separation from your family at a relatively young age, your displacement to a refugee camp and, finally, your coming to Australia as a refugee. As Mr Hieu Nguyen pointed out, there was no real transition assistance provided to prepare you for the cultural differences you would face in Australia from those you experienced as you grew up in Vietnam. There were, and obviously continue to be, problems with your learning and coping with English. Ordinary human experience would suggest that the disruption of the type you have experienced would, or at least could, not unexpectedly result in your facing problems with assimilation into the Australian community.

9. I accept the evidence of your brother, Mr Vuong Tho Nguyen, that in the ordinary course of events in the absence of your parents he would assume responsibility for your guardianship. He is older than you and you have for periods of time stayed with him. However, it was plain from his evidence that his efforts have been placed in overcoming his own difficulties and establishing himself and, more latterly, his family and that he has not, therefore, fulfilled his responsibilities with respect to assisting you. In saying that I in no way mean to attribute any blame to him, but simply state it as a fact. I am satisfied from his evidence and from the evidence of your other brother, Mr Tan Nguyen, that they both have genuine concern for you and for your welfare. I note that you have sought to hide as much as possible your activities not only from your brothers but also from your parents so that any resultant shame may be avoided. But that course has had the effect that those persons have not had the ability to give you assistance perhaps at times when it was most needed.

10. During the course of the hearing, it was suggested that you had not been entirely open with the migration authorities, e.g. in the supplementary T documents it is plain that you applied for Australian citizenship in 1986 and that in completing the form you did not reveal you had, as was the case at that time, committed offences (see ST, p.6). I note however that when you applied for resident return visa in 1992 you did, under the heading Character Declaration, indicate you had previous convictions and nominated "possession [drugs]". It was also suggested in giving your evidence that you sought to avoid responsibility for your involvement in the commission of offences and to try and explain away the facts surrounding the commission of those offences. Having regard to your poor educational level, to the fact that you have when confronted by the police and the courts always admitted your involvement in the offences, the difficulties you experience in the English language (and I note you claimed that you had someone else complete your citizenship application on your behalf), I am not prepared to conclude that you have actively sought to mislead the immigration authorities. The high standard expected from those dealing with the immigration authorities has, in my view, not been shown to be breached in the instant case.

11. It was said that you have committed further offences, which is the case, since your interview with the Immigration Department in 1993. That interview occurred in August 1993, no doubt while you were in prison in relation to the deportable offences. Despite that interview, which was clearly aimed at bringing to your attention the possibility that you may be deported, you have committed further offences. I note however that the further offences that you have committed are not "deportable offences", as that term is used in clause 19 of the Deportation Policy.

12. You are now aged 31 years. You are not married, and do not have responsibility for any children in Australia. You enjoy a good relationship with your two brothers, who both live in Victoria. They have managed to adjust to Australian life and no doubt faced much the same difficulties as you, although I note that when they fled Vietnam and arrived in Australia they were some years older than you. Mr Hieu Nguyen has offered to provide you with assistance in resolving your problems. He told the Tribunal that in his view you may be able to overcome the problems you experienced with drugs. He is certainly prepared to offer you assistance, even to taking you into his own house in order to achieve this. You have given the Tribunal an undertaking that if you are allow to remain in Australia you will not be a repeat offender. I can, however, attach little weight to that since it is an undertaking you have given previously, and not been able to keep. I do, however, note that you have attempted to decrease your use of heroin by increasing the use of other, perhaps, less addictive drugs, in particular cannabis. This is at least indicative that you wish to change your lifestyle away from the involvement of the less acceptable heavy illicit drugs. Any involvement with any type of illicit drug is, of course, undesirable.

13. In terms of the Deportation Policy you have not committed any one of the offences nominated in the Policy as being so serious as to warrant consideration with respect to deportation. As the Tribunal has previously stated unless there is good cause not to follow the Policy, the Policy should be followed. It should not, however, be followed slavishly or lemming like so as to exclude consideration of circumstances not contemplated by the Policy, but which may themselves give rise to the decision-maker being required to consider what is best for the Australian community having regard to the overall aim expressed in the Policy, namely to protect the Australian community from those individuals who commit serious crimes.

14. It is plain that your offences are not of the usual serious kind which the Tribunal normally sees. Whilst I accept that you are a drug user - including the use of heroin - you are not a dealer or a profiteer. There is no suggestion of serious violence in relation to any of the offences of which you have been convicted. In the overall scheme of things it would be fair to describe your involvement with the criminal law in Australia as constituting a constant nuisance to the community, rather than the type of behaviour nominated in clause 12 as likely to lead to deportation. A long series of persistent more minor offences revolving around socially unacceptable activities such as the taking of drugs of dependence may eventually warrant consideration of such a person being deported.

15. The Tribunal heard evidence from Ms Marion Le, who is a well-known commentator on South East Asian immigration matters, particularly those relating to Vietnam. Ms Lee commented that Vietnamese citizens who left Vietnam illegally are upon their return "gravely disadvantaged" and it was her evidence that if you were returned to Vietnam you would be put into the jail system. She described you given your age at the time you left as being "a stranger and alien in his own land". She stressed that in her opinion you would have no future at all if you were returned to Vietnam. She also commented on the Vietnamese criminal law system as being arbitrary and punitive in nature. On the other hand, the Tribunal heard from Mr Peter Jobe, the Director of Compliance within the respondent Department, who gave evidence as to a number of [Vietnamese] government to [Australian] government discussions concerning the return of Vietnamese citizens. It was his evidence that the Vietnamese government preferred on humanitarian grounds that such citizens not be returned to Vietnam, but that cases would be assessed on a case by case basis after a lengthy bureaucratic process. Mr Jobe commented that the economy was not prospering and that employment prospects were a matter of concern to the Vietnamese government and that there were accommodation difficulties facing people who are returned to Vietnam. He said that there was one case recently where a Vietnamese citizen who had been ordered to be deported from Australia as the result of the commission of criminal offences had been accepted back to Vietnam. The point was made on behalf of the applicant that those who had returned to Vietnam had not arrived in Australia as refugees. As I have said earlier, however, the issue of whether or not you are a refugee need not be determined by me for purposes of reaching a decision in this case.

16. While I accept that you do not have particularly strong family ties to Australia, I accept that you have lived in Australia now for a period of 14 years. You have lived away from Vietnam and away from members of your family who live in Vietnam for the majority of that period of time. I accept the evidence of Mr Hieu Nguyen that it would be difficult for you to identify and adjust to living in Vietnam given the length of period that you have lived in Australia. Without, as I said earlier, being slavishly bound to follow the Policy without thought as to the purpose with which the Policy seeks to promote, I am however satisfied that balancing the circumstances surround your case results in the balance tipping in favour of your not being deported. You are not, however, entirely "off the hook". A continuation of the type of irresponsible behaviour which you have exhibited over the past 10 years, if it were to continue, may ultimately lead to your deportation. As I have said the Policy is not to be so slavishly followed that a consideration of the circumstances surrounding your persistent irritating behaviour will not result in consideration of your deportation. You would do well to follow the example of your more law abiding brothers and accept the advice and assistance Mr Hieu Nguyen is offering.

17. For the reasons stated above, the decision under review is set aside, and the matter is remitted to the respondent with a direction that the deportation order of 2 March 1997 be set aside.