Tran and Minister for Immigration and Multicultural Affairs [2002] AATA 461 (14 June 2002)

DECISION AND REASONS FOR DECISION [2002] AATA 461

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Tribunal The Honourable RNJ Purvis, QC, Deputy President

Decision The Tribunal affirms the decision under review

CATCHWORDS - IMMIGRATION - Deportation - After Criminal Conviction - Possible Hardship Suffered by Applicant - Whether International Obligations Applicable - Prospect of Indeterminate Detention - Whether Affects Validity of Order

Migration Act 1958 (Cth)

Perez v Minister for Immigration and Multicultural Affairs [1999] FCA 1342; (1999) 94 FCR 287

Vo v Minister for Immigration and Multicultural Affairs [2000] FCA 803

14 June 2002 The Hon. RNJ Purvis, QC, Deputy President

1. This is a review of a decision made on 7 July 2000 by the respondent Minister to deport the applicant, Thanh Nha Tran, under Section 200 of the Migration Act 1958.

2. An application for extension of time was sought by the applicant and with the consent of the respondent a Direction was issued by the Tribunal on 18 April 2001 extending the time for lodging the application for review.

3. This matter was heard on 30 and 31 August 2001 in Brisbane. The applicant was represented by Ms Marion Lê, a Registered Migration Agent. The respondent Minister was represented by Mr B Cramer, Solicitor of Messrs Blake Dawson Waldron. The then Presiding Member being no longer able to determine the matter, the parties consented to the Tribunal being reconstituted and a decision reached on the basis of the transcript of proceedings being read together with the exhibits and the submissions made on behalf of the parties.

4. The following documents were tendered in evidence before the Tribunal.

* Exhibit 3 Bundle of Certificates from Department of Corrective Services

* Exhibit 4 Letter dated 16 August 2001 to Mr Tran from West Morton Regional Community Corrections Board

* Exhibit 5 Case Notes from Applicant's Prison File

* Exhibit 7 Letter from Amaco Australia - Employment Reference - Van Lun Tran

* Exhibit 8 Statement of Guong Hong Doan dated 20 August 2001

* Exhibit 9 Statement of Phuong Thanh Doan dated 22 August 2001

* Exhibit 10 Statement of Tran Cong Lam dated 23 August 2001

* Exhibit 11 Statement of Truc Cong Lam dated 23 August 2001

* Exhibit 12 Statement of Ha Thu Thi Lam dated 20 August 2001

* Exhibit 13 Statement of Tuoc Ba Lam dated 20 August 2001

* Exhibit 14 Statement of Danh Huynh dated 20 August 2001

* Exhibit 15 Statement of Dzung Lau dated 20 August 2001

* Exhibit 16 Statement of Nghiep Cong Lam dated 23 August 2001

* Exhibit 17 Letter dated 27 August 2001 from Nguyen Van Toi

* Exhibit 18 Statutory Declarations from Ada Lam, Tien Thi Tran and Trinh Thi Nguyen

5. Mr Tran was born on 10 May 1974 in Minh Hai, South Vietnam. He is a Vietnamese citizen. He arrived in Australia on 23 May 1991 at the age of 17 years. Mr Tran's father died when he was two months old. His mother is an Australian citizen, who resides in Cabramatta in New South Wales, with the applicant's half-sister, and her current de-facto partner, Mr Van Luan Tran.

6. In 1994, Mr Tran met Ms Phuong Doan Lam, his current wife. The couple married in March 1999. Ms Lam is an Australian citizen.

7. On 20 August 1999, following a plea of guilty, the applicant was convicted in the Queensland Supreme Court for three offences of "supplying a dangerous drug" (committed on 3, 6 and 25 May 1998) and one offence of "possession of things used in connection with a crime" (committed between 2 May and 6 June 1998).

8. These charges followed an undercover surveillance operation conducted by the Queensland Police Service between 15 December 1997 and 20 November 1998 in the Brisbane and Gold Coast areas. The applicant's wife and Minh Ngoc Vo, an Australian citizen, were also convicted of offences arising out of the same surveillance operation.

9. On all charges the applicant was sentenced to a period of five years imprisonment with a recommendation that he be considered eligible for release on parole after serving a period of twenty months imprisonment. Time that the applicant had already spent in custody was deemed time already served. In sentencing the applicant, her Honour Justice Atkinson raised the possibility that the applicant may be deported at the conclusion of his sentence, and remarked that she considered him to be "a person of bad character" (T17, p99).

10. On 4 May 2000, the applicant was convicted of further drug offences in the Queensland Supreme Court. The applicant was convicted of one count of "trafficking dangerous drugs" (committed between 5 March and 26 May 1999), two charges of "supplying dangerous drugs" (committed on 14 and 21 May 1999), and two charges of "possessing anything used in the commission of a crime" (committed on 14 and 25 May 1999). The applicant was sentenced to imprisonment for six years with a recommendation for parol after serving eighteen months. Time that the applicant had already spent in custody was deemed time already service.

11. These charges arose out of further surveillance conducted by the Queensland Police Force. Minh Ngoc Vo and Phuong Doan Lam (the applicant's wife) were also charged with offences relating to this investigation.

12. It would seem that these offences were committed whilst the applicant was on bail for the earlier offences. In her sentencing remarks on 20 August 1999, her Honour Justice Atkinson observed that Mr Tran had married Ms Lam in March 1999 whilst he was on bail awaiting trial for the 1998 offences (see T17, p98). His Honour Justice Dutney also noted in his sentencing remarks for the later offences, on 4 May 2000, that these later offences were committed whilst the applicant was on bail for the earlier offences (Exh R2, p22).

The Legislative Framework and Primary Considerations

13. These convictions bring the applicant within s 200 of the Migration Act 1958 ("the Act"). Under s 201 of the Act, the Minister may order the deportation of a non-citizen, under s 200, where the non-citizen has been convicted of an offence and sentenced to a term of imprisonment of no less than one year; and where the non-citizen has been a permanent resident in Australia for a period of less than ten years. At the time of the first offence (2 May 1998), the applicant has been resident in Australia for six years, eight months and sixteen days.

14. The applicable Ministerial Direction is "Direction 9 - General Direction - Criminal Deportation" ("Ministerial Direction 9"). The Direction states that the primary considerations are the expectations of the Australian community and, where an applicant is involved in a parental relationship with a child, the best interests of that child. The latter consideration does not apply in this case.

15. Issues to be taken into account when evaluating the protection of the Australian community include the seriousness and nature of the offences committed by the applicant, the risk of recidivism and the deterrent effect of deportation on other non-citizens.

16. The Australian community as a whole has little or no tolerance of the use of illegal narcotic substances. This is reflected in paragraph 11 of Ministerial Direction 9, which states:

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

The production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs.

Persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people.

The Government views potential deportees who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which put the lives of young Australians at risk should be viewed as completely unacceptable to the community.

Offences involving heroin and other illicit drugs of dependency or addiction are of particular concern to the Government and the community."

17. Those who trade in such substances by way of sale or supply to others are regarded as very serious offenders. Thus, the deportable offences in this particular case are to be ranked as very serious ones indeed. Their nature is repugnant to the Australian community.

18. The deportable offence is not the first offence of which the applicant has been convicted. His criminal history reveals convictions for other drug related offences including two charges of supplying prohibited drugs (heroin) and one charge of possessing prohibited drugs (heroin) whilst the applicant was a resident in New South Wales. In his evidence before the Tribunal, the applicant testified to a further conviction. He stated that in 1995 he was arrested in Canberra for possessing heroin and sentenced to seven months in gaol. This conviction does not appear on the applicant's criminal history, nor in any of the other documents before the Tribunal.

19. Unfortunately, evidence as to these convictions was not before Atkinson J when she sentenced the applicant in August 1999, nor was it before Dutney J when he sentenced the applicant for the further offences in May 2000.

20. In his evidence at the hearing, the applicant stated that he had applied for citizenship after he was released from gaol in 1993-94, but was denied citizenship due to his criminal history. Despite this, the applicant went on to commit the deportation offences.

21. The applicant submits that these offences, and the deportable offences, arose from his addiction to drugs and his association with people of poor character. The applicant claims to have now overcome this addiction and evidence was given that he has not used drugs during his period of imprisonment. However, the applicant's gaol records are not entirely clear of poor conduct by the applicant.

22. In November 1999, Mr Tran tested positive for opiate in a gaol urine test (see Exh R2, p15). A couple of days later, he was found guilty at an internal gaol inquiry for the offence of "Ingest or Administers Medication/Drug", and was deprived of some of his privileges for seven days (see Exh R2, p14). There is also a report that he assaulted another prisoner in October 1998 (Exh R2, pp17-20). However, there is nothing before the Tribunal to indicate that this behaviour has been repeated during the last few years, in fact there is evidence to the contrary.

23. In evidence at the hearing, the applicant's wife stated that, prior to the commission of the deportation offences, she and the applicant had moved to Brisbane to try and escape drug trafficking associates that Mr Tran had in Sydney. Ms Lam testified that the applicant had been involved in drug trafficking in Sydney and that they experienced difficulties breaking away from the drug traffickers despite their move to Brisbane. Ms Lam agreed that, if the applicant was not deported, they would still face pressure from Mr Tran's drug trafficking associates, however she indicated that this time they would remain close to their families for support to ensure they did not commit any further offences.

24. In his evidence at the hearing, Mr Tran stated that when he returned from Canberra to Sydney he was "kidnapped" by his drug trafficking associates and forced to sell drugs. There is no other evidence to support this statement, but, regardless, it does indicate the difficulties the applicant would face in escaping from his drug trafficking associates upon his release from gaol.

25. As noted earlier in these reasons, the applicant committed the later set of deportation offences whilst on bail for the earlier offences. This is an aggravating feature in his crimes, which tends to demonstrate that the applicant may be likely to re-offend upon his release from gaol.

26. Further, if Mr Tran is not deported, and is to return to live with his mother in Cabramatta, it is highly likely that he would come into contact with his drug trafficking associates, who first introduced him to drugs during his schooling at Cabramatta High School. In cross-examination at the hearing, the applicant's mother agreed that she was concerned that if the applicant was to return to Sydney he may become involved in drugs again. That is why she would like the applicant and his wife to live in Melbourne with Ms Lam's parents and extended family.

27. The applicant's father-in-law, Tran Cong Lam, also testified at the hearing of this matter. He stated that he and his family were very supportive of the applicant and his wife. Mr Lam stated that he would arrange for accommodation and employment for Mr Tran in Melbourne, if the applicant was to remain in Australia. Mr Lam also testified that he would be very strict upon the applicant, to ensure that he did not start using drugs again. He stated that he would report the applicant to the Police if he used drugs or breached his parole in any way.

28. The respondent submitted that the applicant should be regarded as presenting a "not insignificant" risk of re-offending. The applicant committed the deportable offences in association with his wife, Ms Phuong Doan Lam, who it was submitted could not be said to be a positive influence on the applicant. The respondent also pointed to the applicant's criminal history as indicative of the likelihood of the applicant re-offending.

29. On the basis of the evidence before the Tribunal it is of the view that there is a "not insignificant" risk of further offences being committed by the applicant.

30. The making of a deportation order, if communicated to the wider community, carries a significant deterrent effect. The Tribunal is of the view that the potential of the power in the Minister to deport people, if communicated to persons migrating to this country, would prevent the commission of many crimes in the first instance.

31. In this case, the deportation of the applicant would send a clear message of deterrence to the applicant's wife, his other co-accused (Minh Ngoc Vo) and to the wider Vietnamese community in Australia.

32. The applicant has a small family network in Australia including his wife, his mother, and his half-sister. Mr Tran's wife has a considerable family network in Australia, many of whom hold steady employment or are in professional positions. It was submitted that the applicant would suffer considerable hardship if deported, as he would be separated from his wife and his family, and because he has no family in Vietnam.

33. There was evidence before the Tribunal of the particular emotional hardship that the applicant's wife would suffer if he were to be deported. Ms Lam had initially indicated to Departmental officers that she would go to Vietnam with the applicant if he was deported. However, in her evidence before the Tribunal she said that she felt that she would not be able to go to Vietnam with him. There was a suggestion made that Ms Lam may experience difficulties gaining entry into Vietnam given her drug-related criminal history.

34. The applicant does not have any children in Australia, nor does he have any assets in this country. It was submitted on behalf of the respondent that, although the applicant's family would suffer emotional hardship if the applicant be deported, they are not financially dependent upon him. The respondent further contends that the applicant has not had any significant involvement in the Australian community during his time in Australia. The Tribunal accepts these submissions.

35. A factor raised by the applicant relates to the hardship he may face due to a possible delay in his deportation because of the Vietnamese Government's reluctance to issue travel documentation to persons who entered Australia on "Documents for Travel to Australia" (T17, p65).

36. Section 206 of the Act confirms the validity of a deportation order despite any delays in the execution of the order. Although the likelihood of indeterminate detention pending the execution of a deportation order is a matter which should be considered by the Minister when determining whether a detainee should be released from detention pending deportation (see Perez v Minister for Immigration and Multicultural Affairs [1999] FCA 1342; (1999) 94 FCR 287 at 293; and Vo v Minister for Immigration and Multicultural Affairs [2000] FCA 803 at par 12), the length of detention does not itself destroy the validity of the detention or the decision to deport (see Vo (supra)).

37. The Tribunal has considered the submissions put forward by the applicant as to the possible hardships he would face if deported. However, it is not persuaded that these hardships are sufficient to outweigh the primary considerations relevant in matter, namely, the expectations of the community implicit in which is the need to protect the Australian community.

38. It was submitted on behalf of the applicant that the Australian Government, under its international obligations, has a duty to protect the applicant from deportation. Mr Tran entered Australia as the holder of a 205 (Camp Clearance) Visa and he is considered a refugee within the terms of the Refugees Convention (T17, p52). Under Article 33(1) of the Refugees Convention, a refugee cannot be returned to their home country if their "life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion".

39. Mr Tran has indicated that the only difficulty he had experienced in Vietnam related to difficulties being accepted into high school given his father's service to the former Government (T17, p125). In a Departmental Minute (T17, pp143-149), the Onshore Protection Section outlines their investigation into the applicant's claims. They conclude that, pursuant to Article 1C(5), the Refugee Convention has ceased to apply to the applicant as he no longer faces any danger if he returns to Vietnam. The Tribunal accepts that there is no evidence to support any suggestion of a continuing danger to Mr Tran's life or liberty if he is to be returned to Vietnam.

40. Mr Tran also claimed that he is protected from deportation by the International Convention on Civil and Political Rights on the basis that, if deported, he may face the death penalty or may be subjected to arbitrary arrest and imprisonment because of his drug related criminal history. There is no evidence to support this suggestion. Accordingly, the Tribunal finds that the applicant does not engage any of Australia's international obligations not to deport him.

41. It is the expectation of the Australian community that those from overseas who are enabled to reside in Australia will comply with the community standards and obey the laws of the country. For serious offences of the kind committed by the applicant and reflected in his conviction, the expectation of the Australian community would be, and is, that the exercise of the Minister's relevant power now vested in the Tribunal be in favour of the making of a deportation order.

42. Having regard to all the above matters, The Tribunal is of the view that the decision under review should be affirmed.

I certify that the forty-three (43) preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. RNJ Purvis, QC, Deputy President.