Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 70 and 71AC

Migration Act 1958 ss 31, 499, 500 and 501

Migration Regulations 1994 rr 1.09, 2.21B and 2.25

Austin v The Queen [1989] HCA 26; (1989) 166 CLR 669; 85 ALR 353; 40 A Crim R 355

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60

GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198; 78 ALJR 786; 206 ALR 116

Goldie v Minister for Immigration and Multicultural Affairs 1999 FCA 1277; (1999) 56 ALD 321

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84

Kamara v DPP [1974] AC 104; [1973] 2 All ER 1242; (1973) 53 Cr App R 880

Lei Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133

Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313; 62 ALR 673

Minister for Immigration and Multicultural Affairs v Daniele [1981] FCA 212; (1981) 61 FLR 354; 39 ALR 649

Minister for Immigration and Multicultural Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441; 42 ALR 209

Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349

Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316; 159 ALR 170

R v Broadbent [1964] VicRp 94; [1964] VR 733

R v D'Orta-Ekenaike [1998] 2 VR 140; 99 A Crim R 454

R v Duong [1998] 4 VR 68; 99 A Crim R 218 (CA)

R v Howells [1998] EWCA Crim 2515; [1999] 1 WLR 307; 1 All ER 50 (CA)

R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587 (CCA)

R v Jones (1974) 59 Cr App R 120

R v Osip [2000] VSCA 237; (2000) 2 VR 595

R v Storey [1998] 1 VR 359; 89 A Crim R 519

Re Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148

Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780

Re Truong and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 100

Ridley v Secretary, Department of Social Security [1993] FCA 213; (1993) 42 FCR 276; 113 ALR 655

Saffron v Commissioner of Taxation (Cth) (No 2) [1991] FCA 363; (1991) 30 FCR 578; 102 ALR 19

DECISION AND REASONS FOR DECISION [2007] AATA 1047

Decision: The Tribunal affirms the decision under review.

A delegate of the respondent, the Minister for Immigration and Citizenship ("Minister"), cancelled the Class 457 - Business (Long Stay) visa (Business Visa) held by the applicant, Mr Abel Ngu. He did so on 30 October 2006 and Mr Ngu was advised of his decision on 15 November 2006 after concluding that Mr Ngu does not pass the character test under s 501(6) of the Migration Act 1958 (Migration Act) and that the discretion in that section should be exercised in favour of cancellation. I have also concluded that Mr Ngu does not pass the character test. He has a substantial criminal record within the meaning of s 501(7). Once he has that, s 501(6) provides that he does not pass the character test and the Act does not give the decision-make any discretion in to conclude otherwise. Section 501(2), however, does have an inherent discretion permitting the decision-maker to decide whether or not to cancel Mr Ngu's visa even though he did not pass the character test. I have decided that the discretion inherent in s 501(2) should not be exercised in his favour. Consequently, I have affirmed the Minister's decision to cancel Mr Ngu's Business Visa.

2. As Mr Ngu does not pass the character test set out in s 501(6) of the Act because he has a substantial criminal record, the only issue in this case is whether the discretion in s 501(2) should be exercised to cancel his visa.

3. In this section of my reasons, I set out the findings I have made regarding the facts forming the background to the issue that I must decide. I have made those findings based on the evidence and in light of the lack of controversy between the parties about them.

4. I find that Mr Ngu was born in Sibu in Malaysia on 8 February 1982. He is the second of three children. He has an older brother, Mr Chin Thian Zabad Ngu, and a younger sister, Ms Yae Joo Leona Ngu. Their parents are Mr Tai Sie Ngu and Mrs Ai Geok Sim.

5. Mr Ngu first arrived in Australia on 27 November 1996 as the holder of a TR 676 Tourist visa and remained until 7 December 1996. On 16 February 2002, he came to Australia again as the holder of a subclass 572 (Vocational Education and Training Sector) visa and left on 8 January 2003. By the time of his return on 13 January 2003, all five members of his family had been granted Temporary Business - Long Stay (OFFSHORE) (UC 457) visas on 9 January 2003. Mr Ngu did so as a dependent family member. The Business Visas were valid until 9 January 2007. Since its expiration, Mr Ngu has been granted a Bridging E (Class WE) as he is serving a term of imprisonment.[1]

6. Mr Ngu's father last left Australia on 1 May 2003. At that time, he was the holder of a Business Visa. His mother has travelled to Australia several times. She last entered Australia on 26 October 2006 but returned to Malaysia before the expiration of the Business Visa. Before that, she visited three times in 2004, once in 2005 and spent almost six months in Australia earlier in 2006.[2] Mr Ngu's brother, Mr Zabad Ngu, last entered Australia on 24 July 2006. At that time, he held a Business Visa but, since its expiration on 9 January 2007, holds a Bridging A (Class WA) subclass 010 visa while waiting for the determination of his application for a visa.[3] He is planning to study a Hospitality and Management course. Mr Zabad Ngu previously studied Architecture at RMIT in Australia. He is now running a bar and restaurant as well as a business organising events. They are business in which his family and their business partners have invested.[4] Ms Leona Ngu last entered Australia on 24 February 2006 on a Business visa. She studied accountancy in 2006 and plans to continue her studies this year. Her Business Visa also expired on 9 January 2007 and she has applied for a visa to enable her to complete her studies.

7. Mr Ngu has two cousins who live in Australia. He also has six cousins who live outside Australia, one grandparent in Indonesia, an uncle in Canada and another one in an unknown country but not Australia, two cousins in Singapore and the rest in the United States of America.

8. Mr Ngu did well at school. He did his last eighteen months of schooling in Kuala Lumpur. A few of his friends did the same and they all lived together in a house his mother had arranged for them. He had no family in Kuala Lumpur but his mother would telephone him each night.

9. The material in the G documents lodged under s 500(6F)(c) of the Act contains copies of a Court Outcomes Report from LEAP maintained by the Victoria Police. At the hearing, Mr Eteuati, appearing for the Minister, handed up an updated report from LEAP. Mr Ngu queried the accuracy of that report in respect of the last of the offences of which he was convicted on 2 November 2006. In light of that, I asked Mr Eteuati to ask the County Court of Victoria for a copy of any records that it had in relation to that conviction. He did so on 25 January 2007. It confirms what is stated in the LEAP report. In light of that, I make the following findings regarding Mr Ngu's convictions:

Drug trafficking - 59 ecstasy tablets (guilty plea)

9 months of which 3 months be served cumulatively with count 1

TOTAL: 12 months of which 4 months was suspended for a period of 2 years.

Declaration made that 211 days already served by way of pre-sentence detention.

Property forfeited and a pecuniary penalty of $354.

TOTAL: 2 years and 9 months with a non-parole period of 1 year.

Declaration made that 198 days already served by way of pre-sentence detention.

Extortion with threat to inflict injury (not guilty plea)

The offences: recklessly causing serious injury

10. Mr Ngu's view of the events leading to his conviction for these two counts began with an account of his driving a friend's car in Russell Street in Melbourne. He was with two friends, Kai Ting Colin Chien and John Singford Ting, and trying to find a place to park the car. When he did find a space in the centre of the road, he was prevented from getting into it by another car stopped behind him. The driver was intermittently flashing the car's lights onto high beam, blowing its horn and slightly reversing it and surging forward but stopping just short of hitting Mr Ngu's car. Each time the driver made that manoeuvre, the car's tyres screeched. Agitated, Mr Ngu tried to park but scratched a parked car with his bumper. He left the parking space and drove north along Russell Street to Lygon Street. The other car followed him through the parking space and gestured at him. Mr Ngu said that his anger escalated and that he was concerned about the damage to his friend's car.

11. He stopped at the red traffic light at the Lonsdale Street intersection but the other car stopped next to him. There were two men in the car and they stared in the direction of his car "with sinister smiles". Mr Ngu described the events that followed in this way in his letter to the Tribunal dated 16 January 2007:

"...I wound down my window screen, shouting at the 'driver', 'What is your fucking problem, man?' John and Colin were also blaspheming at them then. The 'driver' reached towards the back seat to grab something and hurled what appeared to be an empty bottle in my direction. It struck the body of my car with extreme force and smashed to smithereens upon landing on the ground. Following that, he sped off with laughter as the traffic lights had then green. Outraged by his vexing and pugnacious demeanour, I pursued the car. I was certain that the impact of the glass bottle had dented my friend's car and I wanted the 'driver' to pay for the cost of the repair.

At the next set of red traffic lights, our two cars were aligned side by side with no cars ahead of us. At this stage, John had picked up one of the three baseball bats, which belonged to the car's owner, from under the rear seat and pointed at the two individuals, who were still guffawing. On top of that, the 'driver' made provocative remarks, one which I still remember clearly being 'What are you gonna do, cunt?' that I believed to be directed at John. I stretched my head out of the window to find a moderate dent with scraped-off paint on the side door and I pointed my finger to it while staring at the 'driver'. Just as I was about to say something to him, he sped off again as the lights changed to green and I followed. When we came to the intersection of Lygon Street and Elgin Street, the car turned right into Elgin Street and so did I. I was then trailing the car from behind. After traveling [sic] some distances, the car abruptly swerved to the left and stopped at the side of the road. My car went past. I stamped on the brake pedal and stopped approximately 5 meters in front of the car. Both cars were parked in a parallel fashion to the periphery of the road.

Viewing from the rear mirror, I observed the 'driver' disembarked his car and started trotting towards my car. The 'front passenger' followed him from behind. John got off the car, clenching the baseball bat. By that moment, the 'driver' had come face to face with John. Without a conversation of any sort, the 'driver' grasped John by the shirt collar and started punching him in the face. Colin got off the car on to the side where John was and I got off as well. Nevertheless, we both stood our ground. The approaching 'front passenger', lunged towards Colin and they began exchanging blows. The 'front passenger', who looked stout and solid-built, pushed Colin hard, causing him to tumble to the ground. The 'front passenger' then bolted towards John, who happened to be striking the driver with the bat at the time, and elbowed him on the back of his neck. John stumbled a few steps and slumped onto the hood of our car. The two men then moved towards Colin, who was struggling to get up, and began assaulting him. Alarmed by their aggression, I quickly moved towards John, grabbed the bat, which he was still clutching on to, and went to help Colin. The 'driver', who was then bleeding profusely from his head, had his back facing me while he was kicking Colin. I gave his legs a vigorous smack with the bat, causing him to fall and retreat. At that very instant, I head constant tooting of car horns in the distance but I ignored it. The 'front passenger' withdrew from kicking Colin and charged at me. He was reeking badly of alcohol stench from his breath as he drew nearer. In a spontaneous manner, I struck him twice with the bat in a downward motion. He screened by holding one of his arm across his face. Upon receiving the two blows, he knelt to the ground, signaling [sic] for me to stop by raising an open palm above his head. I stopped. At that time, Colin and John rushed towards him and started kicking him. I pulled both of them away and told them to leave.

The three of us embarked our car. Far off on the other side of the road, I saw a cab with its horn still tooting. As I drove off, the 'driver' sprinted towards our car, caught hold of the side mirror to my left and attempted to break it but to no avail. His blood smeared the conjoining window screen and windscreen. While driving, I perceived that John and Colin both had bleeding noses. John also suffered a swollen bruise on the back of his neck and Colin claimed that he had a throbbing pain on his back as a result of the kicking by the two men while he was on the ground. I suffered no injuries. Unsettled and still perturbed by the incident, we cruised aimlessly until we came to a BP petrol station with a 24-hour carwash in Boxhill [sic]. We washed the car and then headed for Colin's place to seek respite.

A week later, early in the morning on 23 August 2003, we were pulled over by a police car while driving in the same vehicle on Glenferrie Road. ..."

12. In his oral evidence, Mr Ngu said that he acted in a moment of recklessness. His actions were impulsive and he spontaneously grabbed the bat from his friend to prevent them from being assaulted and to defend himself. He agreed that the force he used was not proportional to the threat but the two occupants of the other car were well-built and that he was intimidated by their size. They were very aggressive and assaulting his two friends. When Mr Ngu got out of the car, he said, he stood his ground. Seeing his friends being assaulted, he just wanted to help. After Mr Ngu had struck him once, the driver knelt down signalling him to stop hitting him. Mr Ngu said that he did so. Had Mr N and Mr J not damaged his friend's car in the first place, he would never have pursued them in the first place. All that he wanted was to recover pecuniary compensation.

13. Mr Ngu said that he understood that Mr N and Mr J had permanently left Australia by the time the matter came to trial. His solicitor thought that there was a good chance of his being acquitted if he pleaded not guilty. Mr Ngu gave the matter thorough consideration, he wrote in his letter, and made up his mind to continue to plead guilty. The basis of his decision was that he was conscience stricken and he had in fact injured the two victims in a moment of recklessness.

14. In sentencing Mr Ngu, Judge Nixon gave the following account of events:

"The offences occurred at about 4.45 a.m. on Saturday 16 August 2003 in Elgin Street, Carlton. The victims were two Thai nationals, Mr N... and Mr J..., who were students who shared a flat in the city and who worked part-time in a restaurant. After the victims finished work they drove to Lygon Street, Carlton, intending to buy some beer from an all night cellar, but it was closed. Mr N... then drove his friend into the city to buy some food, then they drove north in Russell Street towards Lygon Street.

Your car, driven by you, Mr Ngu followed the victims' car in Russell Street and the headlights of your car were on high beam. You, Mr Ting, were seated in the front passenger seat while you, Mr Chien sat in the rear seat. Both cars stopped at traffic lights and your car was on the left of the victims' car. You, Mr Ngu, and you, Mr Ting, stared at the victims. Both cars moved off when the lights changed to green and stopped at the next set of red traffic lights. On this occasion the three of you stared at the victims. At the next set of red traffic lights, which were at the intersection of Lygon Street and Elgin Street, one of the passengers in your car pointed a baseball bat at the victim who was a passenger in Mr N... car. The victim warned the driver.

In an attempt to avoid your car Mr N... turned right into Elgin Street but you, Mr Ngu, followed and also turned right into Elgin Street where you overtook the victims' car and then cut in front of that car. You, Mr Ngu, stopped your car in front of the victims' car at an angle, with the front of your car facing the gutter. This manoeuvre forced the victims' car to stop beside and parallel to the gutter some two or three metres from your car.

Mr N... alighted and walked towards the front of his car. The three of you got out of your car although you. Mr Chien, were probably the last to get out. Mr N... asked, 'What's wrong? What happened, mate?' but he did not receive a reply. You, Mr Ngu, after a very short time, held a baseball bat. Mr N... ran towards the footpath you, Mr Ngu were in hot pursuit. When Mr N... turned round he saw that you had the baseball bat raised about your head. He put his arms up to protect himself, but you then began to strike him a number of times with the baseball bat. The victim fell to his knees, yet you continued the assault.

A taxi driver who had stopped his taxi cab on the opposite side of Elgin Street witnessed the greater part of the incident and he described some six or seven blows with the baseball bat striking Mr .... Mr J... ran over to assist his friend, Mr N... and when he pushed Mr Ngu away one of you struck him from behind. His glasses were knocked off and he had a blood nose. He ended up on the ground, but then heard Mr N... calling out for help. He tried to push your grip away from Mr N... but while attempting to do so he was hit heavily to the back of the head and then fell to the ground. He was punched and struck a number of times and then you, Mr Ngu, joined the attack, wielding the baseball bat. The taxi driver saw that the man holding the baseball bat, you, Mr Ngu, struck Mr J... three to four times with the bat.

The three of you then returned to the car, which you, Mr Ngu, drove from the scene. The taxi driver, ever alert, had noted the registration number of your car and the three of you were arrested in the car in the early hours of the morning of 23 August. Police found three baseball bats at that time in the car.

Each of you participated in a record of interview and in one way or another sought to blame the victims for what had occurred. I am satisfied that the Crown summary was an accurate account of this incident, and I note that the version related by the two victims was in large measure confirmed by the evidence of the alert taxi driver."[5]

"... I regard the circumstances here as constituting a violent confrontation on a public road, albeit in the early hours of the morning. It was a serious episode of what is now often termed, road rage ..."[6]

"... I regard you, Mr Ngu, as the leader of the pack. You were the principal offender. Not only were you the driver of the car but it was you who wielded the baseball bat with considerable force and effect after you took the bat from Mr Ting, who initially held it.

You, Mr Ting, as I said, had the baseball bat at first and, on the evidence, Mr Ngu took that bat from you shortly after the altercation began. Nonetheless you, Mr Ting, were involved in what seems to have been a fist fight initially with Mr J.... Mr Ngu later joined in that attack wielding the baseball bat. I am satisfied that each of the victims suffered the fractured arm due to your actions, Mr Ngu, with the baseball bat.

15. Judge Nixon noted that the two Thai nationals had suffered the following injuries:

"Mr N... was treated at hospital for a fracture of the shaft of his left ulnar, and his left arm was placed in a plaster cast. There was swelling and tenderness over his left hand and forearm and a three to four centimetre laceration to his scalp which required seven sutures and, in addition, he had a grazed left knee.

Mr J... suffered a transverse fracture of his right ulna, with some displacement of the fracture. His right arm was placed in a plaster cast. He sustained a head injury and was tender over the occipital and left parietal region of the skull. He suffered concussion and sustained bruising and tenderness to the head, and he suffered in later days from headaches, dizziness and feelings of nausea. He also sustained a two centimetre laceration across the bridge of the nose.

This victim declared a victim impact statement which I have read and considered. It was declared on 26 February this year. This incident, and I quote from what he said, 'My life has changed a lot from that night'. His studies were delayed. He was unable to work for four months, and he changed schools because he said his original school was an isolated school. Again I quote from his victim impact statement, 'I cannot enjoy night life any more'. He also suffered financially as a result of the assault."[7]

16. Mr Ngu took issue with Judge Nixon's remarks. He strongly protested against the accuracy of the prosecutor's submission regarding his role and conduct during the fight. He had not struck Mr N six or seven times with the baseball bat and nor did he strike Mr J three or four times. He struck Mr N once on his legs and hit Mr J twice when Mr J charged him. Mr Ngu said that he was not wholly responsible for Mr J and Mr N's injuries as there were other people using the bat as well. How could he be considered the leader when he was not the person who initially yielded the bat or the person who started the fight. Mr Ngu also said other statements were "ludicrously untrue". Those statements were that the headlights of his car had been on high beam while he chased the other car, that he was in hot pursuit when Mr N tried to run away and that he continued assaulting Mr N after he tried to run away. Mr Ngu said these statements were based solely on the prosecutor's assumptions and the absurd statements made by the two victims. During cross-examination at the committal hearing, the two victims each provided a different version of the incident. That, Mr Ngu said, indicated that they were lying. The taxi driver came to the scene at a much later stage and only witnessed the end of the altercation. He was so far away that he was even doubtful about his perception of the incident when he was being cross-examined.

17. Mr Ngu said that he admitted injuring the two men with a baseball bat when he was first interviewed by the police. He told the detective what had happened and tried to give him an account of the whole picture of the incident. Mr Ngu expected that the detective would comprehend that the two men provoked them into the fight by starting it and that he was intimidated by their aggression. He expected that the detective would understand that he had used the bat impulsively to prevent his friends from being further assaulted and to defend himself.

" While there is definitely no excuse for my actions that had brought about serious injuries to Mr N... and Mr J..., I was just hoping that my honesty and truthful explanation of my out-of-character behaviour to the police would at least gain myself some leniency from the authorities. Remorseful for what I had done, I am most prepared to accept that punishment that I am liable to. However, is it a fair treatment if my wrongdoing is to be overstated, hence entitling me to an excessive castigation, in spite of my penitence and conscientious confession? Is this the consequence that I should deserve in defiance of the fact that I followed my conscience and persisted with my guilty plea in order to express my contriteness, regardless of knowing that I had an eminently good chance of acquittal when the police and the prosecutor lost their wildcard one week prior to the trial, or was it just a stupid decision that I have come to make?"[8]

19. In his letter to the Tribunal, Mr Ngu said that the charges became contested when his offer to plead guilty to an offence of recklessly causing serious injury was rejected.[9] Later, he noted that he had first made his offer on 25 August 2003. Mr Ngu said that his solicitor had told him that he would need to deposit the sum of at least $5,000 in his trust account in order to represent him and engage a barrister. He did not have the money and was reluctant to approach his parents for it and so worry them. His brother lent him nearly $2,000 but did not have anymore.

20. Then, Mr Ngu said in giving oral evidence, he came to know a man at a café in the city about two weeks after his arrest for causing serious injury. Although he does not mention a time frame in his letter of 16 January 2007, his statement is consistent with that in this letter. Later, in cross-examination, he said that he met the man in mid September 2003. He explained his problems, including his need for money, to him. The man told him that he could obtain money by working for him. He did not consider applying for a loan from a bank because he was not experienced. His parents are very traditional parents who expect their children to do well in their studies and he could not approach them. Furthermore, his mother's health is not good at times as she has a heart problem. He had not asked them for money as he did not want to worry them. In order to ensure that they did not know, he asked his brother and sister not to tell them. He thought that he would never have to worry his parents about it as he thought that the solicitor would be able to settle the matter in a very short period by getting him an Intensive Correction Order. As it turned out, the case dragged on for a year.

21. When asked whether he thought about the illegality of what he was doing, Mr Ngu replied that he was "hesitating" but that the man told him they were "just party drugs; not drugs of dependence". The man told him that many people in Australia are using drugs and that he would give Mr Ngu a call. Mr Ngu was to deliver them for him. The man gave him about 60 tablets of ecstasy as well as a quarter of a kilogram cannabis that he was to sell by the gram to his friends. He introduced Mr Ngu to the people to whom he sold drugs. When asked whether it mattered to him whether the activity was legal or illegal, Mr Ngu replied that he was scared as he had never dealt in drugs before.

22. In cross-examination, Mr Ngu said that trafficking drugs in Malaysia is illegal; it is an Islamic country. He had heard rumours that cannabis is "sort of legal" in Australia. He had not heard the same said of ecstasy but the man in the café said that many people are using it. Time was too short to check the matter. Mr Ngu agreed with Mr Eteuati's suggestion that he thought that trafficking drugs might or might not be legal or illegal but he did not care either way because he wanted the money.

23. Mr Ngu was sentenced with his three co-offenders, Quang Hong Vu, Tung Thanh Do and Tue Ngoc Pham, by Judge Williams. In his sentencing remarks, his Honour said of the offences:

"In relation to your role in offending, concerning the ecstasy, it is true that the amount that you were involved with is small, and essentially the charge relates to only one occasion of supply. And I note that you did not supply the second consignment of tablets to the covert operative on 29 September, but the worry is that it was you who was contacted by the trio when they wanted ecstasy tablets. They saw you as a source of supply. Regarding the cannabis, similarly, although not a great quantity, the paraphernalia that you had indicates that you were set up to supply cannabis.

... It clearly is serious, although as with the earlier cases I do recognise that your offending was at the lower end of the scale.

... I recognise that the offender who was referred to as John Ting, who was your friend, and who had apparently arranged to do the physical delivery of the tablets, clearly from that it is indicated that he had a lesser role than you. ... you were in charge of him, you were the supplier, he was just your runner ..."[10]

24. Mr Ngu said that the man at the café introduced him to Ming. He came to know Ming as an upright person. Ming was different from his, Ming's friends, as he did not use drugs. They would play basketball and go fishing and their friendship grew. He offered to lend him $6,000 when he was arrested for drug offences. Ming told him that he could pay him back by getting a part-time job. Ming was not working but said that he had received the money from overseas. Mr Ngu accepted the loan.

25. In his written letter of 22 January 2007, Mr Ngu said that:

"... Regretful for my impetuous and foolish decision to traffick drugs, I was determined to make things right for myself. I deferred my studies in RMIT University as I wanted to work full-time to earn money to pay off my debt to Ming. I searched and found a job as a car park attendant in the Paramount car park in the city until 2004. Later down the track, I took on a higher paid job as a labourer in the Melbourne Market in order to keep up with the payment of the augmenting legal fees and the debt owing to Ming. In mid 2004, I ventured into a home-based business of promoting and merchandising AMWAY products with the financial support of my cousin in Thailand. I worked heartily and the business developed speedily into a lucrative one. By then, having paid off my debt to Ming, the money earned from the business was more than adequate to cater for my legal fees. Contented with my achievement, I was hoping that my court cases could be settled as soon as possible in 2004 so that I could resume my deferred studies in RMIT University in 2005. To my disappointment, they could not. The 'causing serious injury' matter was adjourned twice; once in June 2004 when the two victims failed to attend court and the second time in November 2004 due to the unavailability of judges. The hearing was re-listed for May 2005. As for the drug matter, it was adjourned to March 2005 because the police and prosecutor needed more time for the preparation of the hearing."[11]

26. Towards the end of December 2004, he received a call from Ming. Mr Ngu continued:

"... He wanted me to meet up with him at the front of the Department of Immigration building in the city for something urgent. He spoke with frustration and I could sense that something was wrong. On my inquiry, he refused to tell me regarding the purpose of the meeting, but just replied by saying that he needed me to be there as soon as possible. I could not bear to turn him down as he had done me a huge favour before by lending me the money for my legal fees. Besides, Ming had always been known to me as a person of an upright character since the first day I met him. I walked from my premises on Swanston Street towards the Immigration building. After about 20 minutes, I reached the side of the Immigration building. As I walked further up and turned the corner to face the front of the building, I saw two groups of Asian males in an altercation. Ming and his friends constituted one of the groups and some of them were carrying machetes and poles. They were attacking their rivals ferociously. Shocked by the brutal scenery, I immediately turned tail, left the location and headed home. I had not been in contact with Ming since then."[12]

27. Mr Ngu said that he decided to plead guilty to the charge of unlawful assembly because he had been present at the scene when the brawl had occurred even though he had gone to the scene unaware of what was going to happen. Furthermore, the matter could be resolved quickly without having to go to trial and having to worry about court details. Considering that he had already spent an extended period of time in custody, he decided to accept the offer to plead guilty of unlawful assembly.

28. Mr Ngu was arrested on 16 February 2005. During the police interview, he was told that they had video footage of his approaching the scene when the altercation happened and a mobile telephone record showing that Ming had called him shortly before the altercation began. He attempted to explain the reason for his being there but he was charged.

29. Judge Nixon sentenced Mr Ngu in relation to his conviction for unlawful assembly. He gave a lengthy account of an attack on a Chinese national, whom I will call Mr S, and the preparations that were made to ensure that he would go to a building on the corner of Lonsdale and Spring Streets shortly after midnight on 28 December 2004. Mrs S went there with two friends and Judge Nixon described what then happened:

"... Waiting on the steps of the building was a Chinese man. That man spoke to S... S... recognised the voice, believing it to be Jordan's voice, that is Yiang Yiang Biam, to whom he had spoken earlier.

S said, 'This person grabbed me on the shoulder and started pulling me towards a row of cars parked in Spring Street. I remember one car was black. As I was being pulled along Yiang Yiang Biam punched me to the nose with his clenched fist. I was pulling away when I saw several Asian men running towards me from the cars. I saw two of them were holding long knives. Others in the group carried bats'. Ming Yu, of course, was a member of the team, as were you, Mr Ngu. There is no evidence that you carried any weapon. As S... was attempting to escape Biam punched him again but S..., together with L... and J..., ultimately managed to escape from that area.[13]

The offences: extortion with threat to inflict injury

30. In his letter, Mr Ngu described the events leading to his conviction for extortion with threat to inflict injury:

"Sometime in early October 2004, my best friend, Mathew Ling, called and asked me for a favour on behalf of his friend, Frank .... He told me that Frank was in desperate need to borrow a sum of $6000 for an emergency family use. He asked me if I could help Frank and assured me that Frank was trustworthy and that he would pay back the money in a month's time as promised. Despite not knowing Frank at all, I decided to help because I myself had been through a similar situation before in September 2003. I did not wish to see another person committing an act of foolhardiness on the verge of desperation for money and regretting later on like I did when I resorted to drug trafficking for my legal fees. Moreover, my AMWAY business was running well and remunerative at the time, thus, I had some extra savings of money. On my agreement to help, Mathew gave my phone number to Frank. Frank called me that very night. After he introduced himself, I told him that I would arrange the loan for him. He thanked me. On 8 October 2004, I went to withdraw the money from the bank together with my sister, Leona. She was aware of the purpose of my cash withdrawal. That night, Frank met up with me in front of the state library in the city and I passed the $6000 to him. One month later, on 9 November 2004, Frank made an appointment with me to meet up at Lin'Contro café'. He paid up $1000 and explained that he needed more time to pay off the remaining $5000. Without hesitation, I agreed and told him to take his time. Sometime in end of January 2005, I heard rumours from Frank's friends that he had been gambling, using drugs and spending money in a lavish manner. Dispirited and exasperated by Frank's exploitation of my hard-earned money, I called him and insisted that he returned my $5000 immediately, or else I would go to his parents and inform them about the matter. He apologized, pleaded and promised that he would call me up after five days to settle the $5000. I agreed. Five days passed and there was no call from Frank. I had not heard from him and neither was I able to contact him since then."[14]

31. Mr Ngu was found guilty of the charge by a jury. He had been charged with John Ting and Yang Yu but both of them were acquitted. In her sentencing remarks, Judge Wilmoth said that, on 4 February 2005, Mr Ngu had demanded of Frank that he pay the sum of $5,000. It was a sum that he had asked Frank to repay a few weeks previously. Mr Ngu told him that if he did not get the money, he would injure him. Her Honour specified the injury but, as the conviction is on appeal, I will leave it in general terms. In view of the acquittal of Mr Ngu's co-defendants, Judge Wilmoth found that there were no weapons involved in the commission of the crime.

Frank was frightened and ran away but was followed by Mr Ngu and the other two. Frank ran to the police station in Flinders Lane near Swanston Street.

32. Mr Ngu has lodged an appeal against his conviction. While he has accepted his convictions for the other offences, even though his part in the unlawful assembly was a case of his being in the wrong place at the wrong time.

"... But, there is absolutely no way that I will admit to something that I did not do in relation to threatening Frank ..., not in a million years, not for eternity and I will fight to the very end to prove my innocence."[15]

33. In his oral evidence, Mr Ngu said that Frank had made up all of his evidence and had made up six totally different statements. Frank made it all up because he was scared that Mr Ngu would confront his parents to get the money.

34. Mr Ngu's mother, Mrs Sim, said that her son had been very quiet as a child. He did not have very many friends and was usually alone. He was a good boy, who studied and behaved. He obtained a Melbourne University College Scholarship but he did not take it up as she had already paid the fees for him to attend a school in Kuala Lumpur. When he was studying in Kuala Lumpur, she would telephone him to encourage him.

" For 699 days I have already spent in jail prior to today, for every single night, my reminiscence of the event on the night of 16 August 2003 would come back to my mind before I could fall asleep. If only I could turn back time to that night, I would have made the right decision by putting up with N...'s provocation despite the damage he had caused my friend's car, instead of pursuing after him for the purpose of getting pecuniary compensation. Then, the fight would not have happened, and I would not have been led into committing the further offences of drug trafficking and unlawful assembly. However, at the same time, I cannot help but also think of another possibility. If only Detective .... and the prosecutor had accepted my offer to plead guilty to the two charges of 'recklessly causing serious injury' in the very beginning on 25 August 2003, which they ultimately did after a ridiculous delay of 1 year and 3 months' time, I would have received an Intensive Correction Order for my sentence as I was still studying full-time and without any pending cases at the time. Then, I would not have been led into drug trafficking for the sake of only $3000 for the payment of my private solicitor to contest the 'intentionally causing serious injury' charges. I would not have known Ming, who had brought me into the unlawful assembly. I would have kept on with my normal life, studying at RMIT University and graduated with a Master in Business IT by now.

Since the day I came into prison, I have lost everything; my business that I had worked diligently, my partner, my future, my reputation, all my savings and so much more that I can ever think of, and I could not be more remorseful for what I had done in the past. The one and only thing that I am left with now is my family, which keeps me going on. ..."[16]

36. Mr Zabad Ngu said that his brother's road rage offence was totally due to recklessness, his loyalty to his friends and his very strong sense of wanting to protect someone close to him. He was not present but his brother had told him that the two Thai men had blocked their way. He had tried to pursue the men but one of the men got out of his car and wanted to have a go. There was an argument and the two men started pushing his brother and his friends. He does not think his brother is a bad person. His brother wanted to visit the men in hospital. He has always been a protective person and was so even as a young child. In relation to the conviction for unlawful assembly, his brother had been walking in a public place and caught on the cameras.

37. One of the policemen was really after him. Mr Zabad Ngu talked with the policeman himself about his brother's cases. The policeman told him everything would be all right but, when it all came out, he said different things.

38. Overall, Mr Zabad Ngu thought that his brother had been treated unfairly by the system. His brother is a young man who should be given a second chance. Mr Zabad Ngu said that his brother had changed since he has been in gaol. He has seen that in the way he talks as he no longer sounds immature or reckless as he did before. Mr Zabad Ngu has told his brother that he has to change his way of thinking. The family is giving him a lot of support and his brother is accepting what the family says. Before this, his brother could not care less but he notices from his daily calls that his brother has turned over a new leaf.

39. Mrs Sim said that she had not noticed any change in her son in recent times. He had always been good to her. Later, she said, her son telephones home each day and regrets the trouble he has caused and the cost. He wants to work for the well-being of the Australian economy. She is very confident that he can perform well. His English is very good. If he were banned from returning to Australia, his future would be ruined.

40. In his oral evidence, Mr Ngu said that he was studying for a Diploma of Business Information Technology at RMIT. He had achieved distinctions and high distinctions in his subjects. He continued to study throughout 2003 and 2004 but said that his results dropped to a credit level as he was "really stressed".

41. The Transcript Results from RMIT show that he attained three High Distinctions and one Distinction in the four subjects he studied in the first half of 2002. In the second half of 2002, he attained two High Distinctions and a Distinction in a third. The letters "DNS" are marked against a fourth subject. Given that he is also marked as attempting 85.00 points for that subject and earning 0.00, I have assumed that "DNS" indicates that he did not sit for the exam or complete some other task required for assessment. His enrolment for 2003 was confirmed but his subject load was that of a part-time student.

42. I have already mentioned Mr Ngu's work before his imprisonment. He has completed an occupational health and safety course as a component of a Diploma in Engineering Technology at the Kangan Batman TAFE. That was completed in 2005. While he has been in Port Phillip Prison, he has been working in the textiles industry as a textile cutter. He has also been studying a Clothing Production course while waiting for his release on 1 November 2007. He said that his case manager and industry supervisor were both most willing to testify for his conduct while he has been in prison. The material filed two days before the hearing did not contain any statements from them. Therefore, in view of the requirement of s 500(6H) of the Migration Act, I was reluctant to permit them to be called. Section 500(6H) provides that, in a case such as this:

"... the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review."

43. There are in any event, progress reports from Kangan relating to Mr Ngu's progress in the Certificate 1 & 2 Clothing Production course in which he is enrolled. It is signed by his teacher and by the Campus Manager. The general comment made on 17 July 2006 states:

"Abel is a very enthusiastic student and has made great progress in his studies. He has successfully completed Certificate 1 in clothing Production. He is capable of successfully completing the remaining subjects. Abel has a very good understanding of the work process involved with the cutting table. He demonstrates a very good understanding of the workroom."[17]

44. Mr Ngu said in cross-examination that he had completed an anger management course since he had been imprisoned. It was a short programme and someone had identified that he needed to do it. An alcohol and drug programme had been suggested to him also but he could choose not to do it. He denied using drugs and said that he drank socially.

45. Both Mr Ngu and Mr Zabad Ngu said that his parents are selling their properties in Malaysia and moving to Australia to build up the business in which they have an investment. Both knew that the family members' Business visas had expired. Mr Zabad Ngu thought that the family was only waiting for a medical report in order to be granted further Business visas. If the worst came to the worst, he would come back on a student visa and he is enrolled in a hospitality course. In the meantime, he is helping his father with regard to investments he has already made in Australia in a coffee shop and a restaurant. His father operates a business in Malaysia with a partner but can leave at any time. His mother is a retired teacher. Mr Zabad Ngu thought that his mother would stay in Australia for most of the time but that it would be a couple of years before his father did so.

46. When asked what the family would do if their applications for Business visas were refused, Mr Ngu said "but their plans have been confirmed". To the suggestion that it is up to Australia to decide if they were granted them, Mr Ngu said that his brother and sister would be here for sure. His brother has been here over 13 years. If his family did not come to Australia, then of course he would prefer to return to Malaysia. As it is, the family has a definite plan to be in Australia and, if deported, he would be permanently barred from returning.

47. Mr Ngu said that he has close friends but that they had left him and put the blame on him. He did have friends at RMIT but, apart from sending their regards through his brother, he has not been in touch with them for almost two years. Mr Ngu had a girlfriend but no longer.

48. Mr Ngu would like to complete his Diploma in 2007. He has not been in touch with the RMIT to see whether he can resume his deferred studies because he has been in gaol. His brother did so on his behalf and he understands that he will be able to do so. In a letter to the now Department of Immigration and Citizenship dated 31 July 2006, Mr Ngu wrote that:

"... Since the day I came into prison, I have realized a lot of things and my heart is filled with regrets for what I have done in the past. I have become repentant. Upon my release, I will be residing in an apartment, which is owned by my parents, in the city, together with my family. Notwithstanding the terrible mistakes I have committed, my family members have never given up on me and are giving me full moral support and advices to turn over to a new leaf. I do not ever want to let them down again. I really hope that I would be given a chance to remain in Australia so that I can be with my family, continue my deferred studies, help my family with the business and to be a better person when I am released in October 2006. If I return to Malaysia, I will be all by myself, deprived of my family and aimless because my family will be residing in Melbourne for the next few years, and there are no relatives that I can reside with in Malaysia."[18]

49. As I have said, Mr Ngu views his family as all that is left to him. It is what keeps him going. His greatest wish is to be with his family when he is released:

"... If I have be separated permanently from my family by facing deportation, then life is no longer meaningful for me. My greatest wish now is to be with my family once I am released from the prison. Of course, if granted a second chance to be able to remain in Australia with my family and to start afresh, I will treasure it deeply and I promise I will do well and provide beneficial contributions to the community in the very near future."[19]

50. If not permitted to remain in Australia, Mr Ngu asked whether he would be permitted to go home for a day or two first after his release from prison. He wanted to meet with his family for one last time, pack his belongings and travel to Malaysia of his own accord.

51. If he has to go back to Malaysia, it will be difficult. It is much better in Australia than in Malaysia. He does not know if he can continue his studies in Malaysia if he cannot finish the last three semesters in Australia.

52. Mrs Sim said that her son should be allowed to stay in Australia. His friends in Malaysia have all finished their studies. There is no university in his home town. There is a university in Kuala Lumpur but that is a long way away from his home town. The system would be different from Australia's system. Students have to go to school according to their age. If he were to return to study in Malaysia, he would not have the motivation as he might feel too old. It is not the same as it is in Melbourne.

53. Furthermore, she said, the family is planning to move to Australia. If her son were to return to Malaysia, there might be no one there to support him.

54. Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas.[20] Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (Regulations).[21] The Regulations may prescribe criteria for a visa or for a visa of a specified class.[22] For the purposes of this case, the prescribed criteria for the grant to a person of a visa of the type held by Mr Ngu are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for a Business Visa is that, at the time the decision is made, the person satisfies the requirements of public interest criterion 4001 i.e. that there is no evidence that might justify refusal of the visa under s 501.[23]

55. Even if a person satisfies the primary criteria for a Business Visa at the time the decision was made to grant it, s 501(2) of the Act provides that:

"The Minister may cancel a visa that has been granted to a person if:

(a)

the Minister reasonably suspects that the person does not pass the character test; and

(b)

the person does not satisfy the Minister that the person passes the character test."

56. The "character test" is set out in s 501(6), which, in so far as it is relevant, provides that:

"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

(b) ...

(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;

(d) in the event the person were allowed to enter or to remain in Australia,

there is a significant risk that the person would:

(i)

engage in criminal conduct in Australia; or

(ii)

harass, molest, intimidate or stalk another person in Australia; or

(iii)

vilify a segment of the Australian community; or

(iv)

incite discord in the Australian community or in a segment of that community; or

(v)

represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the character test."

A "substantial criminal record" is defined in s 501(7) to mean, in part, that:

"...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; or

The term "imprisonment" means "... any form of punitive detention in a facility or institution".[24]

57. Under s 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August 2001 the Minister made directions under s 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s 501 of the Act, Direction - Visa Refusal and Cancellation under section 501 - No. 21 (the Direction). This is a matter to which the Tribunal will pay regard and particularly so as is it is policy formulated by the Minister. At the same time:

"... the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.".[25]

58. In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:

"In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.

... When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen's links to Australia and any relevant international law obligations."

59. The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s 501 when he said:

"The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community."

The Direction - application of the character test

60. The Direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, there is no dispute between the parties, and I find, that Mr Ngu has a substantial criminal record within the meaning of s 501(7)(c) and so does not pass the character test.

61. Although Mr Ngu has not passed the character test, it is worthwhile to focus for a moment on what is meant by the expression "good character". It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs[26] where Deputy President McMahon said that:

"'Good character' cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.

The Macquarie Dictionary defines character as '1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.' In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation."[27]

62. In Re Prasad and Minister for Immigration and Ethnic Affairs,[28] Deputy President McDonald added:

"A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, 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."[29]

63. What is meant by the expression "good character" was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs.[30] While each rejected the notion that good character referred to a person's reputation or repute, Lee J expressed that to which it does refer in the following passage:

"Unless the terms of the Act and regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion ...

...

Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry."[31]

64. Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs.[32] Speaking generally of s 501, the Full Court said that it:

"... does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of 'good character' in s 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 s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.

... Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the tribunal's decision on this ground, so it is unnecessary to pursue this question."[33]

65. As I have found that Mr Ngu does not pass the character test, I will go directly to a consideration of whether or not his visa should be cancelled. This is the discretionary aspect of the character test. The Minister has directed that there are both primary and other considerations to which a decision-maker should have regard in exercising the discretion. Decision-makers are directed that they:

"... 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."[34]

"(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 relationship or other close relationship between a child or children and the person under consideration, the best interests of the child or children."[35]

67. The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Mr Ngu's conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.[36]

68. Of particular significance in relation to the seriousness and nature of Mr Ngu's conduct, I must have regard to the Direction that:

"It is the Government's view that the following are examples of offences which are considered by the Government to be very serious:

...

(n) any other crimes involving violence or the threat of violence:

 such crimes are of special concern to the welfare and safety of the Australian community;

69. In assessing such matters, regard must also be had to any relevant factors put forward by Mr Ngu as mitigating factors.[38] The sentence imposed for any offence is regarded as an indication of the seriousness of the offender's conduct against the community.[39] Regard must also be had to the person's criminal record including the number and nature of the offences, the time between them and the time that has elapsed since the most recent.[40] The Direction states that regard needs to be had to the Government's view that crimes involving violence against defenceless persons are especially repugnant to the whole community.[41] The likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct are also relevant. In assessing that in the context of Mr Ngu's case, it is relevant to have regard to:

"the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make."[42]

General deterrence, the Direction continues, is intended to deter others from committing the same or similar offences.[43]

70. Consideration must be given to the second primary consideration i.e. the expectations of the Australian community as they have been identified by the Minister as follows:

"The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen 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. ..."[44]

71. The third primary consideration relates to the best interests of a child. That is not relevant in this case as Mr Ngu does not have any children.

72. The Minister has recognised that there are considerations, other than primary considerations, which may be taken into account. As each of those other considerations is given less weight than is given to the primary considerations, I will return to them later in these reasons. Before doing so, I should mention the manner in which I am required to consider primary considerations. This was considered by the Full Court of the Federal Court in Lei Wan v Minister for Immigration and Multicultural Affairs[45] in the context of the primary consideration relating to the best interests of the children. The Full Court said:

"32 An identification by the Tribunal of what the best interests of Mr Wan's children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.

33 The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied. The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan's children were a consideration of equal significance (that is, also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan's children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations."[46]

73. Before returning to the balancing of the primary considerations, I will set out the remaining considerations of which the Direction requires consideration. These considerations are considered by the government to be relevant but of less individual weight than the primary considerations. In so far as they are relevant in this case, they include:

"(a) the extent of disruption to the non-citizen's family, business and other ties to the Australian community; ...

(b) genuine marriage to or de facto or an interdependent relationship with an Australian citizen...;

(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;

(d) family composition of the non-citizen's family, both in Australia and overseas;

(e) ...

(f) ...

(g) ...

(h) any evidence of rehabilitation and any recent good conduct;

(i) whether the application is for a temporary visa or permanent visa;

(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and

(k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within ... the visa refusal and cancellation provisions at section 501."[47]

PRIMARY CONSIDERATION: Protection of the Australian community

74. I will begin with a consideration of the essential features of the offences of which Mr Ngu has been convicted. That will assist me in considering two of the three factors to which the Direction directs my attention when considering the protection of the Australian community. They are the seriousness and nature of Mr Ngu's conduct and the likelihood that he will repeat it.

75. Mr Ngu has given detailed evidence as to the way in which he came to plead guilty to all offences but the last; that of extortion. In relation to his conviction for the common law offence of unlawful assembly, I note that, at common law:

"The ingredients of the offence are (i) the actus reus of being or coming together - the assembly, and (ii) the mens rea involved in the intention of fulfilling a common purpose in such a manner as to endanger the public peace. The ingredients have to co-existent."[48]

76. The common law offence of affray and the statutory offence of unlawful assembly are analogous:

"No doubt unlawful assembly differs from an affray, because, unlike affray, it implies a common purpose, and because, unlike affray, actual violence is unnecessary, provided the public peace is endangered, but in my view it is analogous to affray in that (1) it need not be in a public place and (2) that the essential requisite in both is the presence or likely presence of innocent third parties, members of the public not participating in the illegal activities in question. It is their presence, or the likelihood of it, and the danger to their security in each case which constitutes the threat to public peace and the public element necessary to the commission of each offence."[49]

77. In Austin v The Queen,[50] the High Court observed:

"It is the behaviour of the offender in making a demand with menaces or threats which is the gist of the offence and not actions or events over which the offender may have no control ... Thus it is appropriate to regard the offence of demanding money with menaces or threats as complete when the demand has been made in circumstances apt to achieve its communication to the person to whom it is directed and with the necessary intent. It is inappropriate to regard actual communication as a necessary part of the offence."[51]

78. If I were to accept Mr Ngu's explanation of events, it seems to me that the elements of the offence would not have been made out. On his view of events, he left as soon as he saw the group ahead. Therefore, he would not have been part of the coming together and so the assembly. He would not have had the intention of fulfilling any common purpose with that group and so would not have had the mental element that must exist before the offence can be said to have been proved. Yet he has been convicted of the offence after pleading guilty to it. A:

"... plea of guilty amounts to a formal confession of the existence of every ingredient necessary to constitute the offence: see De Kruiff v Smith [1971] VicRp 94; [1971] VR 761 at 765; R v Henry [1917] VicLawRp 76; [1917] VLR 525 at 526."[52]

79. Although it may be different in other States, a plea of guilty can have evidential consequences in Victoria if an accused later decides to enter a not guilty plea:

"When a prisoner is brought before a justice or justices at the preliminary hearing, he is, after all the evidence has been called, asked, after certain statutory warnings have been given to him, to plead to the charge: see Justices Act 1958, ss 47 and 48. His plea is then taken down in writing. It does happen quite frequently that a prisoner, in the lower court, pleads guilty but when he comes up for trial and is arraigned alters his plea to not guilty. This he undoubtedly may do without the consent of anyone. His trial then proceeds and his plea of guilty in the court below may be used as evidence against him."[53]

80. Regard should also be had to the role of the judge in sentencing whether or not sentencing follows a trial by jury:

"1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury ...

2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. The fixing of an appropriate sentence ordinarily involves an exercise of judicial discretion, and it is for the judge to find the facts which are material to that exercise of discretion ...

3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict ...[This] is an inevitable consequence of the division of functions inherent in trial by jury.

4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.

5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender ... However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. When that occurs, it will be because of the application of the principle referred to in 4 to the facts of the particular case, and not because of some principle requiring sentencing on the basis of leniency ...".[54]

81. A five member Court of Appeal in Victoria has set out the standard of proof that must be applied by a sentencing judge:

"[T]he judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."[55]

Where sentencing follows a guilty plea, the findings beyond the elements of the offence must be made on the basis either of an agreed statement of facts or on evidence given to the court.[56] Any facts beyond those elements must either be proved by evidence or be admitted by agreement between the prosecutor and the defence.[57] Where facts have been agreed, a judge may only depart from those facts, or from facts inferred from those facts, if the parties are given sufficient notice to consider whether to challenge that departure and, if appropriate, to withdraw the plea.[58]

82. In light of these authorities in the criminal jurisdiction, how should I regard Mr Ngu's view of events when reviewing an administrative decision? This question has been the subject of consideration in several cases. These include Minister for Immigration and Multicultural Affairs v SRT,[59] Minister for Immigration and Multicultural Affairs v Daniele,[60] Minister for Immigration and Multicultural Affairs v Gungor,[61] Ridley v Secretary, Department of Social Security[62] and Saffron v Commissioner of Taxation (Cth) (No 2).[63]

83. These cases were reviewed by Branson J in Minister for Immigration and Multicultural Affairs v Ali.[64] Her Honour recognised that some legislative provisions operate by reference to the fact that a person has been convicted of a criminal offence. Section 200 of the Migration Act is such a section for it permits the Minister to deport persons to whom Division 9 of Part 2 of the Act applies. Such a person is a person who, as well as meeting other criteria, has been convicted of a criminal offence and sentenced to a period of imprisonment of not less than one year. In those circumstances, Branson J concluded:

"... the administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based ([General Medical Council v] Spackman [[1943] AC 627]), Daniele, Gungor and SRT_)._"[65]

By way of contrast, where a legislative provision does not operate by reference to the fact of a conviction and a conviction is merely one aspect of the evidence in the case, proof of the conviction is not regarded as proof of the essential facts upon which that conviction was based. As Davies J said in Saffron v Commissioner of Taxation (Cth) (No 2):

" A conviction is a decision in rem which establishes, while it stands, that the person convicted has been convicted of certain crime. If the person has been convicted of a felony, it establishes that the person is a felon. Such a matter is one which the convicted person may challenge only by seeking to set aside the conviction. In the taxation appeals, the taxpayer may not challenge the fact that he has been convicted of conspiracy to defraud the Commonwealth. But of course the taxpayer does not seek to do so and the fact of conviction itself is irrelevant. As is stated by G S Bower and A K Turner, The Doctrine of Res Judicata 2nd ed, 1969, p 215, a conviction is conclusive merely of that which it establishes, namely, the fact of conviction for the offence, but not of the facts lying behind that conviction.

... where a conviction is the foundation for the exercise of a power, no challenge can be made to the fact of the conviction or to the essential facts on which it was based. But by making clear the circumstance in which no such challenge may be made, the cases establish that, where the exercise of the power is not founded on a criminal conviction, then even if the conviction be relevant, a challenge may be made to the essential facts on which it was based. In Australia, an example is the decision of the High Court of Australia in Ziems v Prothonotary of Supreme Court (NSW) [1957] HCA 46; (1957) 97 CLR 279."[66]

84. Even though it is regarded in these circumstances as part of the evidence and not determinative of the grounds on which the conviction was based, caution should be exercised in considering whether to reach a conclusion that runs counter to those grounds. Branson J set out the policy considerations that underpin that caution when she said in Minister for Immigration and Multicultural Affairs v Ali:

"_... although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based (_Ridley at FCR 281-282; ALD 731-732; ALR 662), policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:

(a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences (see Gungor per Fox J at FCR 445-446; ALD 578; ALR 212-13); and

(b)

limits inconsistency between decisions of the criminal courts and those of tribunals (see Gungor per Sheppard J at FCR 469; ALD 597; ALR 234)."[67]

85. This is a case in which the fact of Mr Ngu's convictions and the terms to which he has been sentenced provide the foundation for the exercise of the Minister's, and so the Tribunal's, power to decide whether or not his visa should have been revoked. They are the reason why he is regarded as having a substantial criminal record within the meaning of s 501(7) and so a person who is not of good character. At the same time, the events leading up to and occurring during Mr Ngu's committing the offences is relevant in deciding whether or not his Business Visa should have been cancelled. To treat the fact of the convictions and the sentences as having full force and effect for one purpose but to pay less regard to the findings of fact on which they are based seems a little incongruous. After all, the findings of fact are made on the basis of evidence and, if the findings are adverse to the convicted person are only made if the Judge is satisfied of them beyond reasonable doubt. That is a higher standard of proof than applies in this jurisdiction.

86. In a case such as this, the policy considerations seem to me to have some weight. Mr Ngu was convicted after pleading guilty to unlawful assembly and with the benefit of legal advice. His sentence was on the basis of facts that showed that he had committed the essential ingredients of the offence. His legal representative did not demur from the Judge's recitation of them. There was no appeal against his conviction or on the basis that his sentence was excessive. In light of these considerations, I should not, for the purposes of reviewing an administrative decision, accept a version of events that would very likely have absolved Mr Ngu of any criminal liability had they been put and accepted by the County Court. That does not mean that I discount the remainder of Mr Ngu's evidence. I can have regard to it but must do so as part of the evidence.

87. A similar, but less stark, issue arises in relation to Mr Ngu's convictions for recklessly causing serious injury. Again, he pleaded guilty. However, while he has given evidence that paints a somewhat different picture from that painted by Nixon J in sentencing him, it does not deny the essential elements of the offences. The offence of causing serious injury recklessly is an offence under s 17 of the Crimes Act 1958 (Vic). It carries a maximum sentence of 15 years' imprisonment. It is an offence different from recklessly causing injury. While both are indictable offences, the latter is the subject of s 18 and it carries a maximum sentence of 5 years. A conviction assumes that the accused acted recklessly when causing an injury that is regarded as a serious injury.

88. Even on his view of events, Mr Ngu does not dispute that all three elements were satisfied. His part in causing all of Mr N and Mr V's injuries does not detract from the fact that he agrees that he did hit them with the baseball bat and he does not challenge the assumption that one of his blows caused the injuries. In any event, he and his friends, Kai Ting Colin Chien and John Ting, acted in concert and each is responsible for the actions of the others.[68]

89. It seems to me that I can have regard to Mr Ngu's view of events in relation to his convictions for recklessly causing serious injury but must do so as part of the evidence. That is to say, I must also take account of the findings of the sentencing judges who no doubt had the benefit of the material put to them on behalf of the Crown and on behalf of Mr Ngu. Mr Ngu was represented at each hearing according to the transcripts of the sentencing remarks.

90. I have reached the same conclusion in relation to Mr Ngu's convictions for drug trafficking and trafficking cannabis. Mr Ngu admitted selling, and so "trafficking" as that term is defined, ecstasy and cannabis, which are defined as drugs of dependence. [69] They are offences under s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The maximum penalty is 15 years imprisonment in relation to each. Mr Ngu gives a different account of his role but he does not deny the essential elements of the offences. I can have regard to his evidence as part of the whole and should not disregard it simply because it does not accord with the facts recited by the sentencing Judge.

91. The offence of extortion with threat to inflict injury has caused me more concern. It is an offence under the common law. It was described by the High Court in Austin v The Queen:

"It is the behaviour of the offender in making a demand with menaces or threat which is the gist of the offence and not actions or events over which the offender may have no control... Thus it is appropriate to regard the offence of demanding money with menaces or threats as complete when the demand has been made in circumstances apt to achieve its communication to the person to whom it is directed and with the necessary intent. It is inappropriate to regard actual communication as a necessary part of the offence."[70]

92. Mr Ngu has been convicted and, even though on appeal, the conviction stands in the meantime. Mr Ngu did not plead guilty and strongly rejects his guilt. To go through the evidence in order to make findings of fact for the purposes of reviewing an administrative decision would be just that. It would have no relevance at all in the outcome of his appeal. At the same time, it seems improper for a merits review tribunal to set at nought a verdict of a jury in a criminal trial simply because it is on appeal. For all practical purposes, that verdict and Mr Ngu's resulting conviction has full force and effect. An appeal does not lead to deferral of the sentence and, indeed, Mr Ngu is currently serving it. It stands until set aside.

93. If the Minister had based the decision on the one offence of extortion, it could be suggested that it is too early. After all, if the conviction were set aside, the source of the Minister's power would have ceased to exist. Arguably, it would be unfair to take advantage of a window of opportunity between the conviction and the appellate court's decision when that window could be closed in the future. If it is arguable in that situation, it seems equally arguable that it would be unfair to give the County Court's conviction and findings of fact the weight it would be given if there were no appeal. That is not to say that they are given no weight but they are treated more cautiously. This is not a point that was argued during the hearing. Normally, I would ask the parties for any submissions they wanted to make. I am, however, under strict time limits imposed by the Migration Act and there is no time to do so. In any event, my conclusion on this point favours Mr Ngu in relation to my consideration of his extortion conviction but makes no difference to the Minister in the final outcome.

94. Even on Mr Ngu's own view of events leading to the extortion charge, he threatened Frank. On his view, he made the threat to recover money that was his own. The threat, though, was not one involving his inflicting violence upon Frank. Instead, he threatened to tell Frank's parents about their son and his wastrel ways. Mr Ngu indicated that the likely outcome of that disclosure would be censure for Frank from his parents. Why a threat of that nature would lead Frank to run from the café to a police station makes me doubtful that it was a threat of that nature. It inclines me to conclude that it was a threat of a more serious nature but I cannot take the matter further.

95. The initial two offences of recklessly causing serious injury remain serious whether viewed on the basis of Mr Ngu's view of events at the hearing or on the basis of Judge Nixon's findings in his sentencing remarks, the offences remain serious. I prefer Judge Nixon's view of events to that of Mr Ngu. His Honour had the opportunity to review all of the evidence in circumstances in which Mr Ngu could have led evidence to give a different view of events or, if he did not consider that he had committed the offences, pleaded not guilty. He did neither. Judge Nixon also had the advantage of reviewing evidence given by people other than Mr Ngu as well as Mr Ngu. Mr Ngu discounts the tax driver's evidence as to what happened on the basis that he was too far away from events. The taxi driver is one of the people to whom Judge Nixon had regard. I do not consider that Mr Ngu's view of the taxi driver is a reason for my discounting the weight that I should give Judge Nixon's findings. In his evidence, Mr Ngu said that he became aware of tooting but he gave no indication of being aware of anyone around him. He said that he was aware of the tooting of car horns in the distance. Engaged as he was in the events, I do not accept that Mr Ngu was in a position to know who else was in the vicinity and how close they were.

96. Accepting Mr Ngu's version of events, it shows a person who, when faced with provocation, lacked both judgment and restraint in his response but a gross overreaction. He stated that he was concerned about the damage to his friend's car and wanted to stop and inspect the damage. The damage to which he referred in his statement was the damage caused when attempting to park. He never did stop and inspect it. Certainly, he soon had other damage to worry about when the bottle hit the side of the car. That became the only damage that he was concerned about. He admitted that he pursued the other car but claimed that the other car was in front and that they both stopped parallel with the kerb. He justified his hitting the occupants of the vehicle on the basis that they were large and intimidating and were assaulting them. Even on his own version, though, there were three from Mr Ngu's car armed with a baseball bat against two in the other car. However large and intimidating the two men might have been in their manner, they were not armed and suffered broken limbs. Mr Ngu was not injured and his friends' bleeding noses and John Ting's bruise and Kai Ting Colin Chien's painful back were minor injuries in comparison.

97. Mr Ngu rejects Judge Nixon's finding that he was the ringleader at the attack but both of them recount Mr Ngu's taking the bat from John Ting to hit one of the occupants of the other car. On Mr Ngu's account, he was concerned to protect his friend. He took on the role of protector on his story and that equates with his being the ringleader.

98. The drug offences are in respect of trafficking relatively small amounts of prohibited substances but what is worrying is Judge Williams' finding that Mr Ngu was a supplier. Another matter that causes me concern is that Mr Ngu said in his letter that he became depressed after he could not raise the money for his defence to the charges of recklessly causing serious injury. He did not realise that he would need the money until his offer to plead guilty to lesser charges was rejected on 25 August 2003. The offences, though, related to the period 21 August 2003 to 25 September 2003. Therefore, even on his own version of events, his trafficking preceded his becoming aware of his need for money to conduct his defence.

99. If, contrary to my finding, his trafficking was indeed due to his need to raise money for his legal defence, it shows lack of judgment. It shows a lack of understanding of the laws of the country in which he was living. His answer was to the effect that he did not know whether selling drugs was legal or illegal. At the same time, he was well aware that selling drugs was illegal in Malaysia. If a person were associating with certain people in certain locations in Melbourne, it might be thought that certain drugs were readily available. Availability does not equate with legality. Given that he is an educated person, I find Mr Ngu's answers regarding his knowledge of the illegality of his trafficking activities to be disingenuous. He admitted to being scared when he decided to take on their sale. Being scared is more consistent with a knowledge that an activity is illegal than with simply starting a new line of work. I am satisfied that he knew that what he was doing was illegal.

100. I do not accept Mr Ngu's version of events regarding unlawful assembly. I have canvassed the elements of the offence already. Mr Ngu was represented at the sentencing and must be taken by his guilty plea to have agreed that he committed the act of coming together with the others in Spring Street and that he had the intention to fulfil a common purpose in such a manner to endanger the public peace. I cannot accept his evidence at the hearing that he answered his friend's call to go to Spring Street but that, having seen the group, he walked away.

101. In each instance, Mr Ngu's conduct has shown a disregard for others. In the course of events leading to the first offences, the whole focus is upon Mr Ngu. There is no concern for the person whose car he damaged when he tried to park. His whole focus was upon the damage done to the vehicle he was in. In relation to Mr N and Mr V in the other car, his whole focus was on the behaviour that he considered inappropriate. Mr Ngu has given no thought to his contribution to their response. Even if they were at fault initially, he has given no thought to whether he did anything to provoke a response or to exacerbate the situation. When it came to trafficking drugs, his focus was on his own needs. At the time, his needs centred upon money on his story and so he was reckless as to how he obtained it. Whether or not he undertook a legal or an illegal activity to get it was relevant only to the extent that it scared him. There is no indication that he gave any thought to the effect of his drug trafficking activities would have on others.

102. Even in his letter to the Tribunal dated 16 January 2007, Mr Ngu has failed to come to understand what he has done. Even now, he sees his act of pleading guilty to recklessly causing serious injury as a way of showing his contrition rather than an admission of wrongdoing. A guilty plea is certainly the latter and a motive for making it may be the former but to now suggest that he had an eminently good chance of having been acquitted shows that he has not come to accept what he has done. His belief that he would have received only an Intensive Correction Order for the offences had there not been a delay of one year and three months also shows a misunderstanding of the seriousness of what he has done. Had the matter been dealt with promptly, there would then not have been any other pending charges. As it was, Mr Ngu had already been convicted of the drug offences that occurred later in time. In view of Judge Nixon's sentencing remarks, I think it safe to say that Mr Ngu was never a candidate for an Intensive Correction Order. His Honour took the delay into account and took no regard of the unlawful assembly charge then pending. What he also said was that the offence seriousness was high and that Mr Ngu was the ringleader.

103. Putting the extortion conviction to one side, I am satisfied that the risk of Mr Ngu's re-offending is high. He has already committed three quite different offences. Mr Ngu sees one as leading to another and all having their foundation in the road rage incident. I find that there is a common link among the offences but that it is a link of money and friendship or loyalty to friends. Otherwise, the offences are all different. That is of concern because it shows a lack of respect for the law in a range of activities. His pleading guilty to four of the offences and then, at the hearing in the Tribunal, trying to mitigate the circumstances of his offences indicates that he has not accepted his offending behaviour. In his mind, he is only responding to someone else's needs, behaviour or demands or to a situation. He carries little responsibility for the position he finds himself in. That indicates a lack of understanding of the cause and effect of his actions and, without that understanding, his chances of offending again must remain high.

104. I make that finding even though I accept that Mr Ngu has good reports from his course supervisor in Port Phillip Prison. He has chosen to do an anger management course but has not agreed to participate in a drug and alcohol programme offered by the prison system. He has attended to his studies and his work and, as at RMIT, has shown that he is capable of good work. His application and results are to be commended but they are not a good indicator of what he is likely to do when trying to deal with the temptations and aggravations of daily life outside a structured environment.

105. I will turn now to notions of deterrence. I have considered this aspect in previous cases and the facts of this case lead me to the same conclusion for the same reasons. The Direction states that a visa refusal or cancellation may deter others from committing offences similar to that committed by the particular person under consideration. It may do so in a theoretical sense but, unless I can find that there is some likelihood, however slight, that it will do so in this case, it is difficult to see how I can place weight on this factor. There is no evidence that I have been given as to the deterrent effect that requiring a person's departure from Australia has on other people's behaviour. To be a deterrent, knowledge of the cancellation of Mr Ngu's visa must become known. There is no evidence that it will become known to anyone apart from those who have given evidence in this case or to the Department or the parole authorities. Even if those people know, there is no suggestion that their behaviour may be altered or even that they may give the matter some consideration.

106. The notion of deterrence in the Direction equates with the notion of general deterrence in sentencing where it has a role to play as:

"... sentences are in almost every case intended to protect the public, whether by punishing the offender or reforming him, or deterring him and others, or all of these things. Courts cannot and should not be unmindful of the important public dimension of the criminal sentencing and the importance of maintaining public confidence in the sentencing system."[71]

The notion of general deterrence may be relevant even when the offence is rare (R v Osip [2000] VSCA 237; (2000) 2 VR 595; 610-11.

107. Even in the criminal jurisdiction, however, concerns have been expressed about the extent to which regard may be had to general deterrence:

"Whatever the judge may say, his remarks may or may not reach that section of the community to which they are directed, depending upon whether those who publish reports of court proceedings regard the remarks as being worthy of reporting, and whether the criminally-minded persons for whom they are intended read or listen to any report which may be made. It is useless to suggest that one of the purposes of a sentence is to deter others from committing a similar crime, if the knowledge of such sentence does not come to those who are likely to commit the crime."[72]

108. In this case, I do not have the evidence on which I am able to make a finding regarding deterrence other than to say that there may be a possibility, but no more, that cancelling Mr Ngu's visa may deter somebody from committing a similar offence.

PRIMARY CONSIDERATION: Expectations of the Australian community

109. In considering the expectations of the Australian community, I will begin with an extract from my reasons in Re Truong and Minister for Immigration and Multicultural and Indigenous Affairs:[73]

" Turning to the expectations of the Australian community, there is no question that the majority of the Australian community expect that those who come here will obey its laws. Breaches of some laws will be considered minor and even tolerated. Others are not and breaches related to the trafficking of drugs are among the latter. Most members of the Australian community have a very grave concern about illicit drugs and a very grave concern for those who take them. This is a matter that is ' within the knowledge of "every well-informed person in Australia"...' _and so a matter of which I can take judicial notice (_Simpson v The Queen [1998] HCA 46; (1998) 194 CLR 228; 155 ALR 571; 103 A Crim R 19 at 234; 575; [14] per Gaudron and McHugh JJ). That concerns extends to the families for illicit drugs and their consequences may consume not only the individual but all about them. Looked at more broadly, drugs have economic consequences in terms of support and health care of those affected to the loss of their contribution to the community in economic and social terms. Those who supply those drugs are abhorred."[74]

110. Similar sentiments can apply to acts of violence of the sort that occurred during the so-called road rage incident. That is so whether the correct view of the facts is that taken by Judge Nixon or by Mr Ngu. An altercation in the circumstances might be tolerated but "upping the anti" with the use of baseball bats does not accord with the Australian community's expectations. That is so whether Mr V and Mr N were large men or not. The use of force was out of all proportion to the perceived danger in which Mr Ngu and his friends had either placed themselves or found themselves.

111. The Australian community expects that those whom it invites to come to its shores and those whom it permits to come to its shores will do as all house guests should do. They will familiarise themselves with the rules of the house and conduct themselves with a certain degree of restraint until they have done so. They will observe the rules of the house and will not act with reckless disregard of what they are or what they might be simply because it accords with their own notions of honour. A guest can usually get some idea of what should not, rather than necessarily of what should be done during a visit to another place, by reference to what would not be done in the guest's own country. The general Australian community would expect the same consideration to be given in the observation of its laws. In this case, it is well-known that drug trafficking is regarded as a serious offence in Malaysia. The Australian community would have expected Mr Ngu to have assumed that the position was the same in Australia and to have tailored his behaviour accordingly. That may appear contrary to my earlier statement that drugs may appear to be readily available if a person were associating with certain people in certain locations in Melbourne. It is not. It is equally apparent that there is a great deal of concern in the Australian community about drug taking and drug trafficking.

112. Given the concern that exists at all levels of Australian society regarding violence and drug taking in the community, I am satisfied that Mr Ngu has not met its expectations.

113. I have had regard to all of the other matters to which I have been referred. I accept that, if Mr Ngu is required to leave Australia, his studies will be interrupted and the chances of his resuming them and being credit for them in Malaysia is unknown. If he were to remain in Australia, he would be able to resume them on the evidence that I have.

114. If I were to affirm the decision, Mr Ngu would not be able to return to Australia and his hopes of living permanently in Australia would be dashed. He and his brother and mother also said that he would not be able to live with the family. That view is predicated on their view that they will be granted Business visas to live in Australia. Certainly, they have been given them in the past but whether they are in the future is not a matter on which I can make any finding. Although Mr Zabad Ngu was of the view that only the medical issues were outstanding, his mother said in her evidence that the applications had not yet been lodged. I prefer her evidence given that the Business visa applications will be based on her husband's business activities and she is in a better position to know the true situation.

115. At this stage, therefore, it is premature to know whether the family will be able to live in Australia or not. It is premature to know whether Mr Ngu would be separated from them if he were not permitted to remain in Australia. If it comes to pass that they are granted Business visas and he is not in Australia, separation will be as a result of a family decision. This is quite different from a case in which the majority of a person's family are already living in Australia. Separation in that case comes as a result of a decision to cancel or refuse a visa to the person but not in this case.

116. Mr Ngu has a brother presently living in Australia but his situation is no less tenuous than that of the rest of his family. He is here on a Bridging Visa A (Class WA) and that is of a temporary nature. On the evidence that I was given, I am not satisfied that he has yet applied for a student visa. There is no evidence on which I have been able to form a view that Mr Ngu has any contact of significance with his two cousins who live in Australia.

117. Those with whom Mr Ngu has a close relationship remain in Malaysia. His brother and sister are not permanent residents in Australia. He has lost touch with his close friends in Australia and his girlfriend. If he were permitted to remain in Australia he would have to re-establish his social links from the beginning. Apart from the apartment, and that is owned by his parents rather than him, he has no property ties in Australia that I have been told about.

118. Mr Ngu, I am satisfied, may find some difficulties in resuming his studies in Malaysia but I have no evidence on which I can find that he would not be able to do so. His mother expressed concern that he would have to do so in Kuala Lumpur, which is some distance from his hometown and he would not have support there. The distance cannot be considered a hardship given that he has been studying in Australia but the lack of family support may prove a difficulty for him. That is a matter that he and the family would have to take into account but it is not a difficulty that can be characterised as a hardship.

119. Mr Ngu, I find, was not advised that his visa could be cancelled if he re-offended. This is a factor to which I do have regard but it is not determinative of the issue I must decide. His Business visa was a temporary visa and he knew that it expired on 9 January 2007. There is no automatic right of renewal of it and its continuation is subject to certain conditions. They are known to those who hold them. In those circumstances, I do not place as much weight on the lack of a warning as I might do in another situation.

120. Should Mr Ngu be permitted to stay and should he re-offend, the nature of his past offences shows that the consequences for the Australian community are likely to be serious. Whether he must stay outside Australia without the support of any family members will be a decision that must be taken by his family. Life outside Australia may disappoint his hopes and expectations but I am not satisfied that he will be suffer hardship because of the decision not to permit him to remain in Australia. Taking all of these matters into account, I have decided that the nature and seriousness of the offences and the concerns I have expressed about the likelihood of Mr Ngu's re-offending are such that they outweigh the disappointments that Mr Ngu and his family may suffer by his not being permitted to reside in Australia.

121. For the reasons I have given, I affirm the decision of the delegate of the Minister dated 30 October 2006.

I certify that the one hundred and twenty-one preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie,

Signed: ...............................................................

Jayne Rathjen Associate

Date of Hearing 24 January 2007

Date of Decision 7 February 2007

Solicitor for the Applicant self represented

Solicitor for the Respondent Mr T. Eteuati

[1] Migration Regulations 1994 (Regulations), rr 2.25(1)(a) and 1.09

[2] G Documents, undated letter by Mrs Sim sent by facsimile on 25 September 2006

[4] G Documents, Mr Zabad Ngu's letter dated 12 September 2006

[5] Sentencing remarks, Judge Nixon, at [2]-[8]

[6] Sentencing remarks, Judge Nixon, at [19]

[7] Sentencing remarks, Judge Nixon, at [9]-[11]

[9] Judge Nixon refers to his having done so. At that time, Mr Ngu faced charges of intentionally causing serious injury. The Crown initially rejected his offer but later accepted it: Sentencing remarks, Judge Nixon, at [25]

[10] Sentencing remarks, Judge Williams, at [50]-[52]

[13] Sentencing remarks, Judge Nixon at [17] - [18]

[23] r 457.224(a) and Schedule 4, Part 1

[24] s 501(12)

[25] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 590, 70 per Bowen CJ and Deane J

[26] [1994] AATA 27; (1994) 19 AAR 148

[27] [1994] AATA 27; (1994) 19 AAR 148 at 154-155

[28] (1994) 35 ALD 780

[29] (1994) 35 ALD 780 at 781

[30] (1996) 139 ALR 84 , Davies, Lee and Nicholson JJ

[31] (1996) 139 ALR 84 at 94

[32] 1999 FCA 1277; (1999) 56 ALD 321, Spender, Drummond and Mansfield JJ

[33] 1999 FCA 1277; (1999) 56 ALD 321 at 324 and 327

[45] [2001] FCA 568; (2001) 107 FCR 133, Branson, North and Stone JJ

[46] [2001] FCA 568; (2001) 107 FCR 133 at 142

[48] R v Jones (1974) 59 Cr App R 120, Court of Appeal, per James LJ at 127

[49] Kamara v DPP [1974] AC 104; [1973] 2 All ER 1242; (1973) 53 Cr App R 880 at 116; 1248; 890 per Lord Hailsham

[50] [1989] HCA 26; (1989) 166 CLR 669; 85 ALR 353; 40 A Crim R 355

[51] [1989] HCA 26; (1989) 166 CLR 669; 85 ALR 353; 40 A Crim R 355 at 675; 356; 358 per Brennan, Deane, Dawson, Toohey and McHugh JJ

[52] R v D'Orta-Ekenaike [1998] 2 VR 140; 99 A Crim R 454 (Court of Appeal) at 146-147; 462 per Winneke J

[53] R v Broadbent [1964] VicRp 94; [1964] VR 733 at 736 (Court of Criminal Appeal) and applied in R v D'Orta-Ekenaike [1998] 2 VR 140; 99 A Crim R 454 at 146, 461 (Court of Appeal)

[54] R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587 (CCA) at 377-8; 591-2 per Gleeson CJ, Mason P, Hunt CJ at CL Simpson and Hidden JJ

[55] R v Storey [1998] 1 VR 359; 89 A Crim R 519 at 369; 530

[56] GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198; 78 ALJR 786; 206 ALR 116 at 211; 793-4; 126 at per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. Where a person has pleaded guilty to an offence, the elements of that offence are necessarily admitted. There is no need to lead any evidence in relation to them.

[57] GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198; 78 ALJR 786; 206 ALR 116 at 210-211; 793-4; 125-6; [28]-[31]

[58] R v Duong [1998] 4 VR 68; 99 A Crim R 218 (CA) at 77; 228 per Kenny JA

[59] [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349 (Branson, Lindgren and Emmett JJ)

[60] [1981] FCA 212; (1981) 61 FLR 354; 39 ALR 649 (Fisher, Davies and Lockhart JJ)

[61] [1982] FCA 99; (1982) 63 FLR 441; 42 ALR 209 (Fox, Fisher and Sheppard JJ)

[62] [1993] FCA 213; (1993) 42 FCR 276; 113 ALR 655 (Spender, Gummow and Lee JJ)

[63] [1991] FCA 363; (1991) 30 FCR 578; 102 ALR 19 (Davies, Lockhart and Beaumont JJ)

[64] [2000] FCA 1385; (2000) 106 FCR 313; 62 ALR 673

[65] [2000] FCA 1385; (2000) 106 FCR 313; 62 ALR 673 at 325; 684

[66] [1991] FCA 363; (1991) 30 FCR 578; 102 ALR 19 at 581-582; 21-22

[67] [2000] FCA 1385; (2000) 106 FCR 313; 62 ALD 673 at 325; 684

[68] Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316; 159 ALR 170 at 350; 195-196 per McHugh J

[69] Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 70

[70] [1989] HCA 26; (1989) 166 CLR 699; 85 ALR 353; 40 A Crim R 355 at 675; 356; 358

[71] R v Howells [1998] EWCA Crim 2515; [1999] 1 WLR 307; 1 All ER 50 (CA) at 312; 53-54

[72] Mitchell J, The Web of Criminal Law, 1975 Boyer Lectures, ABC, Sydney at 49

[73] [2005] AATA 100

[74] [2005] AATA 100 at [110]