IMMIGRATION AND CITIZENSHIP - application to remain permanently in Australia - applicant convicted of serious drug offence - Tribunal finds that he is of bad character - question as to whether discretion to grant permit should be exercised - weight to be given to Teoh considerations

Migration Act 1958 s. 501

Customs Act 1901 s. 233B

Administrative Appeals Tribunal Act 1975 s. 35

Lam v Minister for Immigration and Multicultural Affairs (Federal Court, 4 March 1998, 364/1997)

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 128 ALR 353

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179; (1979) 2 ALD 634

Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] FCA 1052; (1994) 33 ALD 13

Regina v Kwong Leung Lam (District Court of New South Wales, 10 July 1990, 89/11/1363)

Ang and Others v Minister for Immigration and Ethnic Affairs (1980) 40 FLR 410

Kwong Leung Lam and Minister for Immigration and Multicultural Affairs (unreported AAT 11936, 11 June 1997)

Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98

1. The applicant seeks review of a decision made by the respondent's delegate on 6 March 1996 refusing his application to remain permanently in Australia. The ground for the refusal was that the applicant, by reason of his past criminal conduct, was not of good character. The Minister was thus entitled to refuse to issue a permit pursuant to s 501 of the Migration Act 1958 (the Act).

2. The hearing before me was the second AAT hearing of this application. An earlier hearing, before a differently constituted Tribunal, resulted in a decision affirming the respondent's refusal to issue a permit. On appeal to the Federal Court this decision was set aside and the matter was remitted to the AAT for further hearing (Lam v Minister for Immigration and Multicultural Affairs, Federal Court, 4 March 1998, 364/1997).

3. The previous Tribunal's character finding under s 501 was not canvassed on appeal. Sackville J, without discussing this matter in detail, said that he could see no error in the AAT's approach on the question. The real issue on appeal related to the exercise of the residual discretion under s 501. The ground for allowing the appeal was that the Tribunal had apparently treated the protection of the Australian community as the principal factor to be taken into account in the exercise of the discretion, thereby relegating the interests of the applicant's child to a subsidiary consideration. In accordance with the principles enunciated in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 128 ALR 353, Sackville J emphasised that the interests of children are always to be treated as a primary consideration in matters of this nature.

4. The hearing before me took place over three days, with a gap of about two weeks between the second and the third hearing day. On each occasion the applicant was represented by Mr Ray Turner, solicitor, and the respondent by Ms Frances Backman of Counsel. The s 37 documents were admitted into evidence, as was a large amount of other documentary material, including the transcript of evidence given at the earlier Tribunal proceedings. On the first hearing day the applicant gave evidence, as did his wife Ms Lu. She was in an advanced stage of pregnancy at that time, and when the hearing reconvened two weeks later I was told by Mr Turner that she had given birth to a daughter the previous Saturday. On the third hearing day, evidence was given by Detective Chief Inspector (DCI) Mark Brett. That evidence assumed some significance in the matter, and I shall be discussing it later. In the meantime it is appropriate to outline the legislative and policy framework which is to be applied in this case.

5. The Migration Regulations (the Regulations) set out the criteria to be applied in applications such as this. Amongst these is a public interest criterion contained in cl 4001. This clause provides:

4001. (1) The applicant meets the requirements of subclause (2), (3) or (4).

(2) An applicant meets the requirements of this subclause if, after appropriate enquiries, the Minister has decided that there is no evidence of anything that might justify refusal, under section 501 of the Act, to grant the visa.

(3) An applicant meets the requirements of this subclause if, after appropriate enquiries and consideration of all available evidence of anything that might justify refusal, under section 501 of the Act, to grant the visa, the Minister has decided that that evidence is insufficient to satisfy the Minister of any of the matters referred to in paragraph (1) (b) and sub section (2) of that section.

(4) An applicant meets the requirements of this subclause if, despite being satisfied that refusal, under section 501 of the Act, to grant the visa is justified, the Minister has decided not to exercise the power under that section to refuse to grant the visa.

6. Section 501 of the Act, so far as relevant here, provides:

Special power to refuse or to cancel visa or entry permit

501. (1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:

(2) This subsection applies to a person if the Minister:

is satisfied that the person is not of good character; or

(b) is satisfied that the person is not of good character because of the person's association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.

7. A finding that a person is not of good character under section 501 does not, as criterion 4001 (4) recognises, automatically result in a refusal to grant an entry permit. A residual discretion remains. Paragraph 9.9 of the respondent's Migration Series Instructions No 164 provides guidance in the exercise of this discretion:

9.9 Exercising the discretion to refuse/not refuse the grant after a negative character finding

9.9.1 When an officer is satisfied that a person is not of good character after having regard to the person's past criminal conduct, general conduct or by association with a person, group or organisation which is involved in criminal conduct, the discretion to refuse or not refuse a visa under section 501 is enlivened.

NOTE: In all cases following an adverse character finding, all mitigating factors must be balanced against the adverse character finding. While there is an issue regarding the application of international obligations when considering the discretion to refuse after a finding that a person is not of good character subsequent to the findings of the High Court in the Teoh case, these will not be considered in this MSI until further guidance is sought from the Minister. In any applications where there is an Australian citizen or resident child the case should be referred to Director, Health and Character Section, Migration and Temporary Entry Branch, Overseas Client Services Division, Central Office.

9.9.2 In considering whether or not to grant the visa following an adverse character finding, consider all relevant factors including:

* the circumstances of the person at the time of the application.

genuine marriage to, or genuine de facto relationship with, an Australian citizen/permanent resident;

the best interests of any child associated with the visa applicant/s;

the strength of family, social, business and other ties to the Australian community;

the degree of hardship which would be caused to immediate family members lawfully resident in Australia (especially Australian citizens);

family disposition, both in Australia and overseas; and for protection visa applicants, whether refusal will lead to a breach of International obligations under the Refugee Convention (see section 8).

* whether the application is for a temporary visa or a permanent visa and the purpose of entry to or stay in Australia; and

* whether undue harm would be likely to result to the Australian community if the visa was granted. This would include an assessment of the likelihood of the person re-offending or engaging in unacceptable conduct in Australia. This is a primary consideration, equal in weight to any other primary consideration.

9.9.3 Unless the officer is satisfied that there is sufficient credible evidence available to overcome the discretion to refuse on character grounds, based on the above factors, and that undue harm would be unlikely to result to the Australian community, a decision

should usually be made to refuse to grant the visa.

8. These are policy guidelines, and do not have the force of law. Nevertheless, unless there is good reason to do otherwise, the Tribunal will apply the guidelines (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179; (1979) 2 ALD 634, Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] FCA 1052; (1994) 33 ALD 13). The only "good reason" which exists in this case arises from the tension which exists between the exhortation contained in cl 9.9.3 and the requirement, pursuant to Teoh, that the interests of children must always be treated as a primary consideration in the exercise of the discretion. This tension was alluded to by Sackville J when he remitted this matter to the Tribunal. I shall be discussing it later, as it is pivotal to the considerations in this case.

9. The applicant was born on 21 September 1959 in Guangdong Province in the Peoples Republic of China (PRC). He had three years schooling, and otherwise spent his youth assisting his father on his farm. In 1979, at the age of 20, he "smuggled himself", as he described it, into Hong Kong. He was subsequently fined $250 for illegal entry, but was then issued with a Hong Kong temporary identity card which enabled him to remain there legitimately. During most of his time in Hong Kong he worked as a poultry butcher.

10. In about December 1985 the applicant paid HK$5,000 to a crew member of a cargo ship so that he could stow away during a voyage from Hong Kong to Australia. When the vessel arrived in Sydney he jumped ship, leaving behind him all his papers and personal possessions. Nevertheless, he must have somehow come to the notice of the authorities, for his immigration history shows that on the day of his arrival in Australia, namely on 20 January 1986, he was issued with a temporary entry permit expiring on the same day.

11. The applicant remained in the country illegally and gained employment as a kitchen hand and later as assistant cook at the Emperor's Garden restaurant, a Chinese restaurant in the Haymarket area of Sydney. On 12 April 1988 he went through a traditional Chinese marriage ceremony at the Emperor's Garden restaurant with Ms My Y Lu, who was then a Vietnamese citizen residing in Australia. She has since become an Australian citizen. On 20 November 1988 they had a son, David, and on 31 October 1998 a daughter.

12. On 11 May 1989, pursuant to information received by the National Crime Authority (NCA), the police raided the applicant's home in the Sydney suburb of Marrickville. A large quantity of heroin (1433.3 grams) was found in the roof of the home. The applicant acknowledged that he had placed it there, saying that he was minding it for an acquaintance whom he knew only as Joe. Joe, he said, had asked him to store the heroin in a safe place, and had promised to pay him $10,000 for doing so.

13. On 10 July 1990 the applicant pleaded guilty in the NSW District Court to a charge of possessing a prohibited import, namely heroin, contrary to s 233B of the Customs Act 1901 (Cth). Judge Hosking sentenced him to a minimum term of 7 years imprisonment, dating from 11 May 1989, with an additional term of 2 years and 4 months - a total term of 9 years and 4 months. His Honour made the following observations on the applicant's explanation as to how he came to be in possession of the heroin:

... The prisoner's explanation to the police as to how he became involved is not one which compels acceptance, however, it is uncontradicted. It is true as his Counsel Mr Stratton QC says, that none of the paraphernalia of the salesman or retail of drugs was found at the house. For example, no scales were found or sums of money or any other matter which might suggest that he was actually a distributor. However the prisoner himself did not give evidence before me but I do accept that his level of intelligence is low. I also accept he is well down the line so far as culpability is concerned. There is no suggestion he was involved in the actual importation. His role was to mind it for someone else. (Regina v Kwong Leung Lam, District Court of New South Wales, 10 July 1990, 89/11/1363, at p 2)

14. The applicant appealed to the Court of Criminal Appeal against the severity of the sentence imposed upon him. The Court, in dismissing the appeal, commented that Judge Hosking's findings of fact, referred to above, "were to say the least, very generous to the applicant".

15. On 8 September 1990 the applicant formally married Ms Lu, who had by then become an Australian citizen.

16. The applicant's prison reports show that he was, at all times, an exemplary prisoner. His behaviour was regularly assessed as good, very good or excellent. These assessments were supported by Mr John Abdel-Ahad, a social welfare worker at Long Bay, who gave evidence on behalf of the applicant at the hearing before the previous Tribunal. Mr Abdel-Ahad described the applicant as having a perfect record as an inmate in the system. He was highly regarded, he said, and was extremely trustworthy. There was never any suggestion that he had been a user of drugs. The applicant got on well with everyone in the prison system, both officers and inmates. The only barrier he had, according to Mr Abdel-Ahad, was his lack of English.

17. The applicant's wife maintained close contact with the applicant throughout the seven years of his imprisonment. Whilst he was incarcerated in the Sydney area (which appears to have been for most of his sentence), she took their son David for weekly visits to him. However, part of his sentence was served outside Sydney, at Bathurst and Lithgow, and during this time Ms Lu was unable to visit him. Nevertheless, they spoke on the telephone at least twice a week. During the last few months of his sentence the applicant was allowed to go home on day release for one day each week.

18. In May 1996, at the expiration of his minimum term of seven years, the applicant was released from prison. He returned to live with his wife and son in the rented house at Lakemba where they had lived during his incarceration and which they shared with Ms Lu's sister, her husband and sons. They still live there, although Ms Lu said in her evidence before me that her sister has recently given them notice, saying that her children are growing up and that she needs the extra space.

19. Since his release from prison, the applicant has worked as a cook at the Guangzhou Restaurant at Crows Nest, where he earns $250 per week. He works long hours - from 10.30 am to 10.30 pm for five or sometimes six days each week. And although he takes a break in the middle of this period, it does not enable him to return home. Accordingly, with travelling time, he is away from home for much of the day. The care of the household, and particularly of David, thus falls substantially upon his wife. It is she who usually takes David to school in the mornings and collects him in the afternoons. David is now 10 years old. On all accounts he is a well-balanced, intelligent boy who has done well at school and who, thus far at least, shows no apparent sign of adverse effects as a result of the stresses suffered by the family during the seven years of his father's incarceration. He speaks English at school but at home generally speaks his father's language, Cantonese, which his mother also speaks.

20. On 20 December 1993 the applicant applied to remain permanently in Australia. This application was rejected on 6 March 1996 on the ground that the applicant was not a person of good character by reason of his drug conviction, and that he therefore failed to meet the prescribed criteria for the grant of a permit. As to the discretionary considerations, the Minister's delegate made the following comment:

The offence for which Mr Lam was convicted is a very serious one. He pleaded guilty on an indictment to a charge that on 11 May 1989 he did without reasonable excuse possess prohibited imports, namely heroin, an offence which is looked upon with repugnance in the Australian community. Any resumption of this activity would have the potential to be extremely damaging to the community. I do not consider that it is possible to be satisfied that the granting of a visa to Mr Lam would not result in undue harm to the Australian community.

21. At the time of this decision the applicant was still serving his sentence. The substantial time which has elapsed since then - nearly three years - is largely attributable to the fact that, as already mentioned, the matter has now been the subject of two AAT hearings, and a successful appeal to the Federal Court.

22. I turn now to the issues which need to be considered in this case.

23. Two matters require consideration in a s 501 inquiry. They are:

* Is the applicant a person who is not of good character within the meaning of the section?

* If so, should a permit be issued notwithstanding the adverse character decision?

24. As to the first of these, the "character" issue, Mr Turner did not, in the proceedings before me, seek to challenge the adverse finding made at the previous hearing and tacitly approved on appeal. That finding was based on the proposition that, by reason of the applicant's serious drug conviction, he fell within the terms of s 501(2)(a)(i). In other words, having regard to his past criminal conduct, the Tribunal was satisfied that he was not a person of good character.

25. A further issue arose in the previous proceedings as to whether the applicant also fell within the terms of s 501(2)(b). In this regard the respondent suggested that the Tribunal should find that the applicant was not of good character because of a suggested association with a criminal organisation. The previous Tribunal declined to make such a finding. Further evidence on this matter was also given before me, as a result of which I can say that I entirely agree with the previous Tribunal's finding. This evidence is also relevant to the exercise of the discretion, and I shall be discussing it shortly.

26. I turn now to discuss the exercise of the discretion.

27. As already mentioned, an adverse character finding under s 501 will not necessarily lead to a refusal to grant a permit. The Minister, and thus the Tribunal, retains a discretion to grant a permit notwithstanding the making of such a finding. In considering this discretion, the Tribunal will have regard to all relevant ministerial policy. The policy which is relevant in this case is quoted earlier in these reasons. In addition, on 25 November 1997 the Minister issued a direction pursuant to s 499 of the Act. That direction, assuming its validity, will be binding on all decision-makers under s 501. However it is unnecessary to refer to it further as it is conceded that it has no relevance to the applicant's circumstances.

28. The guidelines quoted earlier in these reasons specify, as a primary consideration, the question of whether undue harm would be likely to result to the Australian community if the permit were granted. The concept of harm to the Australian community is a broad one, which potentially covers a number of considerations. The primary considerations in the circumstances of this case are:

* the risk of the applicant committing further offences; and

* considerations of deterrence - the "message" that would be conveyed if a permit were granted.

29. This is a highly significant consideration. Indeed it is the most weighty consideration to be placed on the debit side of the discretionary scales. If I were to find that there was a substantial likelihood of the applicant re-offending or engaging in unacceptable conduct in Australia, it would require very powerful countervailing considerations in order for the discretion to be exercised in his favour.

30. The following factors are relevant in assessing the risk of further offences:

* the nature of the offence committed by the applicant;

* whether he has been involved in other anti-social or unacceptable activities; and

31. First, the nature of the offence. It goes without saying that the offence to which the applicant pleaded guilty in July 1990 was an extremely serious one. It involved a very large amount of heroin - over 1400 grams, or five pounds - with an estimated street value of approximately $3 million dollars. The heroin was wedged beside a chimney in the cavity between the ceiling and the roof of the applicant's home. It consisted of five separate one-pound blocks, each of them wrapped in foil-lined packages. In other words, great care had been taken to conceal and protect the drug. This contradicted the applicant's initial protestation that he was unaware that the substance was heroin - a protestation which, in any event, was clearly abandoned when the applicant later entered his plea of guilty before Hosking J.

32. Much has been said by the courts as to the untold damage in human terms which arises from the importation and distribution of heroin. It would not be profitable to repeat it here, except to say that the greater the quantity of the drug, the greater the potential for human catastrophe. And this was a very large quantity of heroin. The mere fact that the applicant was prepared to assist in its concealment (assuming that this was the extent of his involvement) indicates a patent disregard for the welfare of the Australian community and for the law itself. In this regard, Ms Backman relies upon the following passage in the judgment of Davies J in Ang and Others v Minister for Immigration and Ethnic Affairs (1980) 40 FLR 410 at 417:

... Trafficking in heroin is a crime so abhorrent to most members of the Australian community that the community, having a choice as to whether or not to admit to its membership a person who has committed such a crime will, except when there are exceptional circumstances operating, prefer not to do so. ...

33. Although it is not suggested that the applicant in this case was actively trafficking in heroin, the storage of the drug is a necessary and integral part of the trafficking process.

34. DCI Brett gave evidence that, in his experience, only an experienced and longstanding member of a drug trafficking group would be entrusted with such a large amount of heroin as was found at the applicant's home. On the other hand, DCI Brett was describing the methodology of a particular drug-importing organisation on the assumption that the applicant was a member of that organisation. As I shall be discussing shortly, there is inadequate evidence to establish a link between the applicant and that organisation, or indeed with any criminal organisation. In any event, it is impossible to know who was responsible for the importation of the heroin found at the applicant's home. Any suggestion that it was any particular group or organisation can be nothing more than speculation. Further, as DCI Brett conceded, neither the applicant nor his family showed any sign of wealth or enrichment. The applicant had been in constant employment since his arrival in Australia. The family lived in modest rented accommodation which they shared with Ms Lu's sister and her family. Certainly the applicant, before his arrest, used to gamble on horses, but there was no evidence that large amounts of money were involved. DCI Brett also suggested that the applicant might have been sending money back to his family in the PRC. The applicant concedes that he did this from time to time, but says that the amounts were small. In the absence of any contrary evidence, there is no basis for rejecting what he says in this regard.

35. In the result, the offence committed by the applicant must be treated as an isolated one. It involved a large amount of heroin which, if released into the community, would have caused untold harm. However it would be unfair to the applicant to assume, from the mere quantity of the drug, that he had a continuing involvement with drug traffickers or drug trafficking. I decline to draw such an inference.

36. Other than the applicant's breaches of the migration laws, there is no evidence that he has committed other offences in Australia or elsewhere. Indeed the respondent obtained a certificate from the PRC indicating that there is no record of his having committed offences against the laws of that country during his residence there. Similarly, the only offence recorded by the Royal Hong Kong Police Force was a migration offence (remaining in Hong Kong illegally) for which the applicant was fined $250 in August 1979. Clearly, however, the fact that the applicant came to Australia as a stowaway and remained here illegally for a number of years must be taken into account as showing a disregard for Australian migration laws and processes.

37. I turn to the question of whether the applicant has been involved in other anti-social or unacceptable activities not evidenced by criminal convictions. This was a significant issue both before the earlier Tribunal and before me. Much of it arose from information contained in a "Basic Person Profile" provided by the NCA and from evidence given by DCI Brett. A confidentiality order was made under s 35(2) of the Administrative Appeals Tribunal Act 1975 in relation to the NCA profile and to DCI Brett's evidence concerning it. It is thus not appropriate to discuss this material in any detail. Suffice it to say that, if the material contained in the NCA profile were correct, it would mean that the applicant was an active and relatively senior member of a sinister organisation which is said to be a major importer of heroin into Australia. The applicant in his evidence denied any knowledge of or association with this organisation. A finding adverse to him on this issue would be a very significant factor against him. Indeed Mr Turner conceded that it would be a decisive one, and that even the strongest compassionate considerations would fail to override the risk to the Australian community if these allegations were to be substantiated.

38. The previous Tribunal, after discussing this material, determined that it should afford "little if any weight to the intelligence information contained in the NCA profile and expanded upon by DCI Brett" (Kwong Leung Lam and Minister for Immigration and Multicultural Affairs, unreported AAT 11936, 11 June 1997, at p 21). After hearing further evidence from DCI Brett on this issue, I am compelled to the same conclusion. One of the matters which initially concerned me was the apparent weight afforded to this information by the finding of the heroin at the applicant's home in May 1989. For at one time it appeared that the information relating to the applicant's association with this criminal organisation emanated from the same source as the information that he had "a cache of guns and drugs" stored in the roof of his home. Although the latter information was incorrect so far as firearms were concerned, it was correct in relation to the storage of drugs, and could thus be seen as giving additional weight to the accuracy of other NCA information. However it transpired from DCI Brett's evidence before me that the information relating to the applicant's association with the criminal organisation may well have come from a different source from that which related to his storage of guns and drugs. This being the case, the finding of drugs at the applicant's home, whilst providing support for one source of information, was neutral in relation to the other.

39. Having considered all the evidence on this issue, I must conclude that the material which tends to link the applicant with this illegal organisation is so speculative as to be of virtually no weight. It would be unfair to use this material in any way adversely to the applicant.

40. The final matter to be considered under this head relates to the extent of the applicant's rehabilitation. This concept combines a number of factors, not the least being the commission of further offences. It goes without saying that the longer a person displays a law-abiding lifestyle, the more significant this factor will become. In this case, the applicant was still in prison when the respondent's delegate refused his application, and this issue did not realistically arise. When the previous Tribunal gave its decision, the applicant had been at large for a little over a year. It is now over two-and-a-half years since his release from prison and the fact that he has continued to live an apparently quiet, hardworking, and domestic-orientated existence is a more significant issue.

41. Also material to the issue of rehabilitation is the applicant's excellent prison record. It appears that he was, in all relevant respects, a model prisoner.

42. The applicant's wife, Ms Lu, says that the applicant is a changed man since he went to gaol. When asked how he was different she said "he takes good care of myself and my son". On the other hand, Ms Lu gave evidence in the sentencing proceedings before Judge Hosking in June 1990 in which she described her husband as "a good man" to herself and her baby.

43. One respect in which there seems to have been a genuine change in the pattern of the applicant's lifestyle before and since his sentence is in his pattern of gambling. It is apparent that he was previously a frequent punter who regularly attended race tracks. Now he places bets only occasionally, and has not returned to the track since his release from prison. He has little opportunity for gambling, as he routinely gives Ms Lu virtually the whole of his weekly salary to cover household expenses.

44. A further factor which is relevant under the head of rehabilitation is the extent of the person's contrition and remorse. In this regard, as Ms Backman points out, little can be said in the applicant's favour. The applicant had, as he describes it, "a very miserable life" during the seven years of his incarceration. He clearly regards himself as having paid, or perhaps overpaid, his debt to society. Indeed he displayed a degree of resentment during his cross-examination when he was reminded of the circumstances of his offence. He steadfastly refused to answer questions about his offence, and professed to have no memory of events from that time. As he put it, "What wrong I did in the past I don't want to think them over again." (transcript, 19/10/98 at p 28). On another occasion he said:

... I was in prison for seven years and had [sic] been very hurtful time of my life and I've forgotten whatever happened in the past and I cannot remember what happened in the past. I feel that I have done my wife and my family a lot of wrong because of my seven years of imprisonment and I don't want to think back on those bad experience. (transcript, 19/10/98 at p 31)

I don't know I've forgotten what happened in the past. When you raised the question about things like that that happened in the past that hurt my feeling because I was in prison for this for seven years already. (transcript, 19/10/98 at p 33)

46. I cannot accept the applicant's protestations that he has no memory of the events which led to his arrest and imprisonment. He was able to describe many of these events to the previous Tribunal, 18 months earlier, and I find it inconceivable that he has lost all memory of them in the meantime. His reluctance to give evidence on these matters was, in my view, attributable to his concern that he might be caught out in inconsistencies. Indeed he admitted as much in his cross-examination. At one stage he said "I don't know how to answer this question because if I give the wrong answer I would be accused of lying ..." (transcript, 19/10/98 at p 28). Later, when the applicant was being particularly unresponsive to Ms Backman's questions, I told him that he was not entitled to refuse to answer questions simply because he did not want to; if he was able to provide answers then he should do so. He answered "[I]f provide the wrong answer I will be accused of lying. So I don't know what to do. It happened too long ago; I can't remember clearly enough." (transcript, 19/10/98 at p 34).

47. This in my view provides the likely explanation for the applicant's refusal to talk about the circumstances of his offence. He was, to put it simply, afraid of being caught out. I suppose the one thing that might be said in his favour is that he openly admitted it. Nevertheless, his persistent refusal to discuss these crucial issues cannot assist him in these proceedings.

48. I return to the overall question of the risk of the applicant committing further offences. To summarise the above, the applicant, who is now aged 39, entered both Hong Kong and Australia illegally. In 1989, when he had been in Australia for a little over three years, he committed an extremely serious drug offence involving a very substantial quantity of heroin. For this he served seven years in gaol. There is no evidence of any enrichment as a result of this offence. Indeed his circumstances have always been modest. Nor is there any suggestion that he has committed other offences, either before or since this offence. He was a model prisoner during his time in gaol. He has an excellent work history and, on all accounts, a stable job. His domestic situation is extremely secure, he has a supportive and loving wife and a very close bond with his son David. He now also has a baby daughter.

49. What, then, should I make of the applicant's refusal to discuss any aspect of his offence? I cannot help thinking that there must have been more to the circumstances of this offence than he was prepared to reveal to the authorities at the time. As Judge Hosking observed when sentencing him, his account of the offence was not particularly credible. It is equally clear, however, that the applicant was no mastermind in this drug trafficking endeavour. Indeed I am inclined to agree with Judge Hosking's assessment of him that he is not of particularly high intelligence.

50. My overall view is this. The applicant has little contrition or remorse about the circumstances of his offence. I suspect that he does not see it as meriting the type of punishment which he received. On the other hand, he has learnt, the hard way, that crime, particularly drug-related crime, does not pay. His seven years of incarceration, separated from his family and isolated in an environment where there was a constant language barrier has, I suspect, had a profound effect upon him. He may not be remorseful about his offence but I am certain that he regrets it, a regret which is born of pragmatism rather than contrition. But when one is looking to the future, the cause of the regret matters little. I very much doubt whether the applicant would be prepared to put himself at risk of further punishment along the lines that he has already endured. Moreover, the knowledge that he would face almost certain deportation if he committed another serious offence within the next 10 years (unless he obtains citizenship in the meantime) would operate as a powerful disincentive, at least during that period.

51. Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending. However in the applicant's case, for the reasons I have given, I consider that the risk of recidivism is considerably lower than one would expect of a person with his record of behaviour. Overall, I consider that the risk of the applicant committing further offences is a low one.

52. Ms Backman submits that considerations of deterrence must be relevant in the exercise of the residual discretion under s 501. She is referring here to general rather than individual deterrence. In relation to the latter, there are very strong inducements for Mr Lam to remain crime-free, as I have already discussed. Ms Backman, however, submits that the principles of general deterrence operate strongly against him. In particular, she says that if he were permitted to remain in Australia it would send a very dangerous "message" to others, which would be inimical to the welfare of the Australian community. It would, she says, be tantamount to telling non-citizens that they can enter Australia illegally, work here illegally and commit serious offences against the laws of Australia but nevertheless be permitted to remain in the country if they marry an Australian citizen and have children. As Ms Backman puts it, the message is that "if you get married and have children all will be forgiven".

53. This proposition is, in my view, unanswerable, and is to be added to the debit side of the discretionary scales. It was also suggested on behalf of the respondent that the need to maintain the integrity of Australia's immigration programme was a relevant consideration under this head. Mr Lam illegally bypassed all normal screening procedures when he entered this country, and it was urged that the well-being of the Australian community demands that others be deterred from similar behaviour. However, as Mr Turner pointed out, the particular permit sought by the applicant is available only to people who were illegally in Australia on or before 18 December 1989. It seems that the permit was made available as a form of amnesty. This being so, it would be unfair to use the fact of the applicant's previous illegal status as an adverse discretionary consideration, given that this was a precondition to the making of his application. It would appear that the previous Tribunal was not alerted to the "amnesty" background of this application, for it treated the need to maintain the integrity of Australia's migration laws as a significant consideration against the granting of the application. This is one of the differences between the matters relied upon by the previous Tribunal and those which I now believe to be relevant. The others will be referred to later.

54. According to the guidelines, the following considerations will be relevant in the applicant's case:

* The genuineness of the applicant's marriage and the potential hardship to his wife;

* The strength of the applicant's family, social and business ties in Australia; and

55. It is undisputed that the applicant's relationship with his wife, Ms Lu, is a genuine, loving and mutually supportive one. Nor can it be suggested that the marriage took place for the purpose of enhancing Mr Lam's residency status, for they were first married, in a traditional Chinese ceremony, at a time when Mr Lam was still an illegal resident and before Ms Lu had obtained her Australian citizenship.

56. It is also beyond dispute that Ms Lu would suffer severe hardship if Mr Lam were refused a permit. She would have the unenviable choice of deciding whether to follow him, with the two children, to the PRC or to remain in Australia without him. Although she speaks Cantonese, she has no family, social or other ties in the PRC and her evidence indicates that, if put to the choice, she would remain in Australia. She regards the welfare of the children, particularly David, as compelling this course. He is doing well at school, and she is not prepared to disrupt his education by taking him to a new country with a different educational and cultural tradition. Ms Lu clearly finds this dilemma extremely distressing. She was visibly upset when giving her evidence, and I accept her distress to be entirely genuine. Indeed she has been treated in the past for severe depression arising out of her anxiety that her husband might be deported.

57. The applicant has been in Australia for approximately 13 years. For a little under two-and-a-half years he was living and working here illegally. The following seven years were spent in gaol. It is only during the last two-and-a-half years, since his release, that he has been able to establish legitimate social ties within the community. During this time he has, on all accounts, devoted virtually all his time to his job and his family. Indeed, he has had little opportunity for outside activities, given his long working hours. Accordingly, his major ties with the Australian community arise by reason of his marriage to Ms Lu and to his stable employment as a chef in a Cantonese restaurant. This is by no means to belittle those ties, which indicate a hardworking, family orientated lifestyle.

58. It is accepted that, in accordance with the principles enunciated in Teoh, the best interests of the applicant's children are to be treated as a primary consideration. Indeed this was, as already mentioned, the basis upon which Sackville J upheld the applicant's appeal from the previous Tribunal's finding and remitted the matter for further consideration. In doing so, his Honour made the following observation relating to the applicability of the guidelines in a case involving the welfare of children:

... In my view this case illustrates the dangers of following guidelines that are not designed for or adapted to the particular circumstances falling for consideration. Where guidelines specifically state that they are or may not be appropriate for a particular category of case, considerable care should be exercised before relying on them in such a case. As the guidelines recognised, the decision in Teoh made it at least questionable whether they were appropriate criteria to apply in a case involving a child resident in Australia. (Lam v Minister for Immigration and Multicultural Affairs, Federal Court, 4 March 1998, 364/1997 at p 17).

59. The primacy of this consideration is a crucial issue in this case. For Mr Turner's primary contention is that the adverse conclusions to be drawn from the applicant's pattern of illegal behaviour is outweighed by the fact that it is clearly in his children's interests, particularly David's, that he remain in Australia and continue to provide them with financial and emotional support and security.

60. It is apposite here to say a little more about David. He is now 10 years old and attends Hampden Park Public School where he will this year be in year five. He was only six months old when his father was arrested and taken into custody. For the next seven years, or at least until the applicant entered the day release programme some months before his discharge from gaol, David's only contact with his father was by way of weekly prison visits. Even these could not take place whilst the applicant was detained in non-metropolitan prisons. Since the applicant's release from prison he has been working long hours. His contact with David has thus been restricted to seeing him in the mornings before he leaves for work and to weekends. In particular, David frequently stays up late on Friday and Saturday nights in order to see his father after his return from work. The applicant speaks no English, and has thus been unable to help David with his homework or to establish any meaningful contact with his teachers.

61. Ms Backman relies upon this background in submitting that the applicant's removal from the family would not be particularly harmful for David. For most of his life his father has been absent and, even since his release from custody, he has spent little time at home with his family.

62. I am unable to accept this submission. As Mr Turner points out, it is a presumption under the United Nations Convention on the Rights of the Child, the ratification of which led to the decision in Teoh, that it will be against the interests of a child to be forcibly separated from one or both parents. No evidence was given in this case to counter that presumption. Indeed there was significant evidence as to the closeness of the bond that has developed between David and his father. Both the applicant and Ms Lu referred to this. Ms Lu said:

I just don't know what to do if my husband has to go back because my new baby almost arrive very shortly. My son's relationship with father has grown and is getting better every day and it would affect him very badly and would have no family warmness. (transcript, 19/10/98, at p 57)

63. Moreover, the devastating affect which the applicant's removal would have upon Ms Lu would, in my view, inevitably attach to the children. David has already experienced the deprivation of his father and the consequent unhappiness of his mother. One can only imagine the harmful effect which a repetition of these traumatic events would have upon a 10 year old boy.

64. In the circumstances I have no difficulty in finding that David's best interests lie squarely against his father's removal from Australia.

65. Very little mention was made during the hearing about the applicant's daughter. This is hardly surprising as she was not yet born during the major part of the proceedings. It was never suggested to either Ms Lu or the applicant that she was conceived for the purpose of improving the applicant's position in these proceedings. Nevertheless the unspoken question always remains. Nor is it known whether the pregnancy was planned or unplanned. It is difficult to imagine that it could have been planned, given the applicant's precarious residency status, unless it was designed to improve his position in these proceedings. But the timing appears to militate against this. For when she was conceived, in about January 1998, the applicant's appeal before the Federal Court had not yet been heard. The appeal was, as Sackville J's judgment shows, strongly contested by the respondent. The applicant was not at that time to know that the appeal would succeed and the matter would be referred back to the Tribunal for a further hearing. Accordingly, full weight is to be given to the fact that there are now two children who would suffer deprivation and loss if their father were to be removed from them.

66. As with all cases of this nature, the exercise of the residual discretion under s 501 requires a balance to be drawn between the consequences of an adverse character finding, particularly the risk to the Australian community, with, on the other side, the personal hardship which would be suffered by the applicant's family, particularly his children, as a result of his removal from the country. In this case, as already indicated, I consider that the risk of the applicant re-offending is a low one. But even a low risk is more than the "minimal" risk referred to by Brennan J, then President of the AAT, in Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98 as being the acceptable level of risk in relation to sellers of heroin. If that principle were to be applied here, then a finding adverse to the applicant would necessarily follow, notwithstanding that the risk is assessed as a low one. However since that case, the balancing process has changed, at least where children are concerned, as a result of the decision in Teoh.

67. Also to be placed on the debit side of the scales are the requirements of general deterrence, as discussed earlier in these reasons.

68. The debit balance is accordingly a heavy one. Given the extreme seriousness of the applicant's drug offence, it would require powerful countervailing considerations to reach an outcome favourable to the applicant. The real question is whether those countervailing considerations, particularly the welfare of the children, are powerful enough in this case to tip the balance in his favour. After considering the matter long and hard, I think that they are. If one is to do more than pay lip service to the Teoh principles and treat the welfare of the children as a primary consideration, equal in weight to any other consideration, then the welfare of the applicant's children so clearly call for his retention as part of the family unit as to tip the scales, not heavily but nevertheless sufficiently, in the applicant's favour. Accordingly I propose to set aside the decision under review. The matter is to be remitted to the respondent with a direction that Mr Lam meets the requirements of criterion 4001 (4) under the Regulations.

69. There is one observation I should make in conclusion. It is obvious from the record that my findings as to the level of risk which the applicant's presence would pose for the Australian community is different from that reached by the previous Tribunal, which found the risk level to be quite high. One reason for this different finding, although by no means the only reason, is the strength of the evidence as to the applicant's rehabilitation, given the time which has now elapsed since his release from prison. In other words, the applicant has benefited from the fact that there has been a significant delay in the resolution of these proceedings. I am well aware that there are occasions when, as a matter of principle, litigants should not be seen to gain advantage by reason of the delayed hearing of their cases. This can be particularly significant in the migration area. However in my view this is not such a case. The applicant's stand in appealing the earlier Tribunal's finding was entirely vindicated when his appeal was allowed. Moreover, the very basis upon which Sackville J allowed the appeal and remitted the matter for reconsideration by the Tribunal, namely the primacy of the welfare of the applicant's children, provides the primary basis upon which my ultimate finding is different from that of the earlier Tribunal.

70. I set aside the decision under review. The matter is to be remitted to the respondent with a direction that Mr Lam meets the requirements of criterion 4001 (4) under the Regulations.

I certify that this and the twenty four preceding pages are a true copy of the decision and reasons for decision herein of Justice Mathews.

Signed: (Sgd) Zoe Nielsen .....................................................................................

Date/s of Hearing 19 & 20 October and 2 November 1998

Solicitor for the Respondent Department of Immigration and Multicultural Affairs