Van Phuc Diep v Minister for Immigration & Multicultural Affairs

Criminal Deportation Direction 13 The Criminal Deportation Direction was made, and came into effect, on 21 December 1998. Its general approach is stated in par 5: "The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to deport a potential deportee. In making such a decision, a decision maker should have regard to two primary considerations and a number of other considerations . The primary considerations are set out at paragraph six (6), and two other common considerations are set out in paragraph seven (7). A decision maker should have due regard to the importance placed by the Government on the two primary considerations, but should also adopt a balancing process which takes into account all relevant considerations."

The two primary considerations are the expectations of the Australian community and, in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children (par 6). The applicant has no children, so the second of the two primary considerations does not arise.

14 Community expectations are said to have two aspects (par 8): the expectation that the community will be protected and not put at risk and that the expectation that non‑citizens who commit or are convicted of crimes that are abhorrent to the Australian community will be removed from Australia. Thus, in relation to the former of those expectations, the Criminal Deportation Direction says (par 10) that it is the Government's view that relevant factors are the seriousness and nature of the crime, the risk of recidivism and the prospect that deportation of the potential deportee would be likely to prevent or discourage similar offences by others. Offences relating to the production, importation, distribution, trafficking, commercial dealing or selling of illicit drugs are regarded by the Government as among the categories of offences to be regarded as very serious (par 11(a)). 15 The "other considerations" are identified in par 7. Paragraph 21 explains the manner in which they are to be taken into account: "It is the Government's view that in considering the issue of deportation other matters, although not primary considerations, will be relevant. It is appropriate that these matters be taken into account but given less weight than the primary considerations. These matters include: (a) the degree of hardship which may be suffered by the potential deportee; and (b) the degree of hardship to any Australian citizens or permanent residents, including the potential deportee's family (other than children whose best interests are a primary consideration). Decision makers should have due regard to the Government's view in this respect. 16 Paragraph 22 then elaborates the Government's view as to the matters to be considered in relation to hardship to the potential deportee. Among them are: "(b) while it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government's intention that such people will never be deported; … (d) the strength of other family, social or business ties in Australia; (e) social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; …" 17 Paragraph 24 includes, among the factors to be considered in relation to the question of hardship to Australian citizens or permanent residents: "(b) the effect deportation would have on other family members, social ties and business associates and whether deportation would impose hardship on them; (c) social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; …"

Grounds of application; submissions; considerations 18 The applicant accepted that he was liable to deportation under s 200 and that his offences - particularly, the first of them, on which the deportation order was based - were serious. He claimed, however, that the Tribunal made several errors in dealing with the evidence before it and in balancing the factors for and against deportation. I shall deal with them in turn.

(a) Risk of recidivism; evidence of change of lifestyle 19 The applicant's case before the Tribunal, as conveniently summarised in his written submissions on the appeal, was that there were factors which weighed heavily against deportation, despite the serious nature of the applicant's offences. They included: "(a) the low risk of recidivism because of the Applicant's efforts at rehabilitation and significant changes in his lifestyle; (b) he is in full‑time employment and is making a contribution (albeit late) to the Australian community; (c) he migrated at the age of 12 as a refugee and so spent a considerable portion of his formative years in Australia; (d) he has little remaining contact with Vietnam and does not wish to return there; and (e) The evidence of the applicant, his fiancee and their family is that they would all suffer significant hardship if the applicant was deported." 20 Evidence of a change of lifestyle and attitude by the applicant was given, before the Tribunal, by the applicant himself, a consultant psychologist, Dr Hayes, the applicant's mother and brother and his fiancee's father. The Tribunal discounted evidence given by the applicant largely because of the applicant's own admission that he had told a number of lies in his evidence to the Tribunal. The Tribunal took the view that, in many respects, Dr Hayes' evidence was of little weight because the opinions expressed were based largely on information given to Dr Hayes by the applicant, who the Tribunal found was not to be believed. The applicant does not base any submission on the Tribunal's treatment of his own evidence or that of Dr Hayes to the extent that it depended on what she was told by the applicant. 21 The applicant's mother made a statutory declaration in which, among other things, she said this about the applicant: "He is different to how he was before he went to prison. At that time, even though he lived with my husband and I, we saw less of him than we do now and we never spoke properly. He was thin and unhealthy. He did not listen to me and I thought he was a bad son. We had many arguments about his behaviour and the people he was with. Although at that time I did not [know] that he was using drugs, as I had no contact with them, I knew that something was not right. He was unhealthy and slept in. He was lazy and not interested in finding work. Since he has been released from prison I have noticed a great change in Phuc. He is bigger and healthier. He watches what he eats and even eats fruit, which he never did. He is respectful towards his family and listens when I speak. He does not go out with his friends and he is happier. He has found a job and tells me that he is doing well. He was proud when the boss told him he was happy with his work and made him full‑time and gave him a rise in his wages. I have never seen him happy at work before now. I know that he gets up very early to go to work and that he never takes a day off. These are all things that he would not have done before prison and I see him as a different person." 22 The applicant's brother gave similar, though less detailed, oral evidence. His fiancee's father gave consistent evidence about the applicant's current attitude and lifestyle. So did his fiancee. The applicant's complaint is that the Tribunal did not address that evidence or, in dealing with the evidence of Dr Hayes, take account of the fact that that evidence supported the facts on which she based her opinion as to the likelihood of recidivism. Dr Hayes' views about the likelihood of recidivism were expressed as follows (following an assessment conducted on 8 February 1999): "The likelihood of recidivism is low. Research on recidivism indicates that if the person remains drug free, has employment, lives in stable accommodation and has family support, re‑offending is unlikely. Mr Diep showed no signs of being drug‑affected during the assessment, and I have no evidence to disprove his statement that he is drug‑free. If he were to return to drug abuse, research indicates that this would be most likely to occur soon after his release from prison. The fact that he has remained drug‑free, to the best of my knowledge, for a considerable period of time is a very positive indicator. Another positive indicator of low probability of re‑offending is Mr Diep's lack of aggression. … In considering the case of Mr Diep, I think it is relevant to note that he is of limited intelligence. He is, as noted above, functioning in the category of borderline intellectual disability, at a level lower than 92% of the population. Nevertheless, he achieved quite a lot during his term of imprisonment and since, including learning new and useful skills. His intellectual impairment no doubt had an effect upon the commission of the crimes, and his ability to be influenced by other people. He is a young man, with very little potential for aggression, who because of his intellectual disability could have been easily led by other, clever people. He also has difficulties with both the English language and the Vietnamese language, which may make it difficult for him to have understood what was going on during the commission of the offences. Mr Diep has now been out of gaol for 10 months, and has not re‑offended, which is a very positive sign as he [is] past the critical period for re‑offending. He did not re‑offend despite a lengthy period of unemployment."

The Tribunal by no means ignored the evidence (other than that of the applicant and Dr Hayes) as to the applicant's change of lifestyle. It summarised, in the section of its reasons dealing with the risk of recidivism, the evidence of all four witnesses and in particular - in the case of the applicant's mother and brother - the evidence about the contrast between the applicant's former and present lifestyle. Nor did the Tribunal give any indication that it did not regard the evidence as reflecting the witnesses' true accounts of their observation of the applicant. The Tribunal's approach appears, I think, quite clearly in two passages, one immediately preceding and the other immediately following its account of the evidence. The former passage is as follows (par 23):

"Although the applicant gave evidence that he knows what he did was wrong, there does not seem to be any acceptance by him that the supply of heroin is a very serious offence that adversely affects the lives of many Australians. There is no evidence that even now he fully appreciates the harm that he has done to the community by being involved in the supply of heroin at the level he was. Even if the applicant's evidence that he promises not to become involved in heroin again were to be believed, it would appear that such comments are not based upon remorse for his previous actions and a realisation that they were wrong. Rather, he appears to be motivated by the present reality of his possible deportation and desire to maintain the relationship with his fiancee. In fact, the applicant relied heavily upon the evidence of his fiancee, in that she would not stand by him if he got involved in heroin again, his own evidence that he would not get involved in heroin because he would lose his fiancee, and the evidence of Dr Hayes that she believed the applicant was unlikely to re‑offend because of the influence of the fiancee." 23 After referring to the evidence of the four witnesses, the Tribunal said (pars 27 and 28): "However, it evident that the applicant played down his involvement in the offences to his fiancee and family and was less than truthful with them. He was also able to hide his addiction to heroin and high level of involvement in heroin supply from this family. Although his extended family all gave evidence that they would assist the applicant in the future to ensure he did not get involved in heroin again, I am satisfied they would have trouble doing this, and the applicant would have no problem deceiving them again as he has done in the past. The evidence, particularly of Dr Hayes, was that the applicant was weak‑willed and easily led. This was used by the applicant as an excuse, or at least a way of "explaining" his involvement in the offences. It also leads to a suggestion that the applicant could be led into such activity again, the more so since he evidences no remorse or genuine guilt for his crimes and no true appreciation of the nature of the crimes, and the impact on the victims of the heroin trade. Due to these factors I find that there is a high risk of recidivism." 24 It is evident, I think, that the submission that the Tribunal did not take the evidence of change of lifestyle into account should not be accepted. Nor, I think, is it open to me to hold that the conclusion which the Tribunal reached was not one which was open to it on the evidence. In summary, the Tribunal took the view that, although the applicant's lifestyle was - for the present - changed, that ought not, for the reasons given, be regarded as a reliable indication of what was likely to occur in the future. This ground of appeal, accordingly, fails. 25 It should be added that the Tribunal considered also the possibility that it might be wrong as to the likelihood of re‑offending (par 30): "Dr Hayes deposed that because the applicant has now settled down in a steady job, is in a firm relationship with his fiancee, and is clean of drugs, the likelihood of recidivism is low. This expert evidence was not contradicted by the respondent in cross‑examination, and therefore, may carry more weight than my own assessment of the applicant's criminal history." 26 The Tribunal proceeded to find that, even if that were so, the nature of the offences was very serious and that community expectations were that "non‑citizen perpetrators of crimes abhorrent to the community, such as the supply of heroin, should not be allowed to remain in the community".

(b) Was the decision based on a finding of fact not open on the evidence? 27 This ground also has to do with the Tribunal's view of the risk that the applicant would re‑offend. In the course of its reasons, the Tribunal said (par 18): "Thirdly, the applicant claims that he is now clean of drugs and will remain so. However, given his past history and lack of any evidence of drug counselling, I am far from confident that he would not revert to his former habit." 28 The applicant's contention was that the Tribunal erred in referring to a lack of evidence of drug counselling; that there was no evidence supporting that finding; and that the finding was at least part of the basis of the Tribunal's decision. 29 Read literally - as a statement that there was no evidence that the applicant had received drug counselling at any relevant time - the statement of the Tribunal is incorrect. In a statement prepared while he was in prison, which was before the Tribunal, the applicant said: "I started and am still attending English classes whilst I am in prison and I have also been attending drug counselling group regularly. I attend drug counselling twice per week and have done so for the last fourteen months."

In a statutory declaration, the applicant's fiancee said:

"Whilst Phuc was in prison I saw him become a stronger person. He told me many times that he was determined not to go back to drugs and to settle down and lead a normal life. We spoke often about getting married and having children. I told him that I wanted this but there would be no future for us if he did not stop using drugs forever. We spoke about counseling [sic], which he went to of his own free will. He told me that this helped him and that it taught him a lot about the effects of drugs."

Dr Hayes in her report referred also, no doubt on the basis of what she had been told by the applicant, to a "drug and alcohol course" undertaken by the applicant while in prison. Finally, there was a document in evidence before the Tribunal described as a certificate of attainment awarded to the applicant "for the successful completion of a six week course in Relapse Prevention".

30 Towards the end of the hearing before the Tribunal the following exchange took place between the Deputy President and Mr Kessels, the applicant's solicitor: "The D. President: 'Very well. Subject to submissions, the case stands adjourned. Just to refresh my memory, how long is it since the applicant purports to be free of heroin? I know it is part of the evidence.' Mr Kessels: 'It was in his statement.' The D. President: 'The other thing I don't recall is did he undergo any drug rehabilitation?' Mr Kessels: 'While he was in gaol on the last occasion. He has been drug free since.' " 31 Counsel for the Secretary referred to the numerous authoritative warnings against an overcritical reading of a Tribunal's reasons and submitted that, in context, the Tribunal should be taken to be referring to a lack of evidence of current counselling rather than a lack of counselling at any time. But while one should not be too ready to perceive error, equally, I think, one should not unduly strain to arrive at a benevolent construction. Despite the juxtaposition with "his past history" (on which counsel for the Secretary relied), I do not think that the passage which I have quoted can reasonably be taken to suggest that, whatever counselling the applicant may previously have undertaken, he was undertaking none at the time of the hearing before the Tribunal. Alternatively, counsel for the Secretary suggested that the passage might be read as a statement that there was no objective evidence of drug counselling (the certificate being ambiguous and the evidence of the fiancee and Dr Hayes being based on what the applicant told them). But that seems to me even less likely than counsel's preferred position. The truth of the matter is, I think, that the Tribunal made a mistake. 32 The applicant's submission was to the effect that the mistake so vitiated the Tribunal's decision as to amount to an error of law. His counsel pointed particularly to a later passage in the Tribunal's reasons where, in the course of dealing with certain submissions on behalf of the applicant, the Tribunal said (par 35): "In this context, I can take note of the fact that curing heroin addiction is notoriously difficult to achieve and the applicant's past history can hardly inspire confidence that in his case, he has the strength and willpower to cure himself." 33 In my view, however, little can be made of that. After all, plainly the Tribunal realised that the evidence was that the applicant had not used drugs since he was imprisoned for the third time. The question was not so much whether he could cure himself but whether he would relapse and re‑offend. That is a question with which the Tribunal had already dealt. I have quoted what appears to me to be the crucial passage in its reasons. A fair reading of the reasons suggests clearly, in my view, that the Tribunal, in reaching its conclusions as to the likelihood of the applicant re‑offending, was moved by considerations that had nothing to do with any lack of drug counselling. It was not suggested that the mistake as to the evidence about counselling was relevant to any issue other than the likelihood of recidivism. That being so, it is not in my opinion to be characterised as an error of law; and it follows that this ground of appeal fails also.

(c) Interpretation and application of deportation policy 34 The Tribunal is said to have erred in two ways, both relating to the way in which it weighed against what the Criminal Deportation Direction classifies as primary considerations certain of the other considerations which, in the Government's view, should be taken into account. One relates to par 22(e) and par 24(c) of the Criminal Deportation Direction. The Tribunal dealt with the topic as follows (par 32): "In weighing up the arguments for and against deportation, there are strong arguments in favour of allowing the applicant to remain in this country. Thus there will undoubtedly be severe hardship suffered by the applicant, his fiancee and his family if he is deported. However, paragraphs 22(e) and 24(c) of the Deportation Policy should be noted. In relation to the degree of hardship which may be suffered respectively by a deportee or others including the deportee's family, these both provide: 'Social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight.' On this aspect, it will be recalled that the applicant committed, and was convicted of the deportable offence prior to meeting his fiancee and prior to his parents migrating to Australia."

The applicant submits that the Tribunal erred in two ways. First, it is said, the Tribunal was plainly wrong in treating the applicant's social ties with his parents as having "developed" after his conviction. They had existed since the applicant's birth. Secondly, the Tribunal, it is said, gave no consideration to whether, and to what extent, the fact that the applicant met his fiancee after being convicted of the deportable offence diminished the weight which would otherwise be given to hardship resulting from the applicant's deportation either to him or to his fiancee. For example, the Tribunal did not consider whether the applicant's engagement was entered into or continued so that he might avoid deportation, or whether his parents had migrated to Australia for a similar reason.

35 In my view, those submissions involve too fine a dissection of the Tribunal's reasons. Although the Criminal Deportation Direction, because of its detail, invites, and possibly requires, construction (Butescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713 at par 36), it is not a statute. Paragraphs 22(e) and 24(c) do not require, I think, in every instance that the Tribunal explicitly ask, for example, whether social ties have been formed for the purpose of avoiding deportation. There was no suggestion that that was the case here. No hint of such a suggestion emerged from the evidence before the Tribunal and it is hardly surprising that the Tribunal did not think it necessary to discuss it. But the Criminal Deportation Direction does not suggest that social ties formed after conviction for a deportable offence may be regarded as being of lesser weight only if they have been formed for some such purpose. 36 As for the position of the applicant's parents, the Tribunal, as I read its reasons, was simply making the obvious point that since he left Vietnam at the age of twelve the applicant had not seen, and apparently had no significant contact with, his parents until they migrated to Australia after his conviction. It was not unreasonable to consider that ties so interrupted, and not resumed until after conviction, were of lesser significance than ties which had continued throughout a potential deportee's life. To suggest that the Criminal Deportation Direction, as a matter of construction, requires the interruption of the relationship to be treated as irrelevant is to attribute to its language a degree of precision and rigidity which, in my view, is at odds with the nature of the document. 37 More generally, a precise and detailed balancing of considerations of the kind which the applicant's submission would require will in many cases not be possible and any appearance of certainty or inevitability which it might engender is likely often to be illusory. And authority indicates that it is not required: Cong Tam Dang v Minister for Immigration and Multicultural Affairs [2000] FCA 73 at pars 50 to 56. 38 The applicant further submitted that the Tribunal either misinterpreted par 22(b) of the Criminal Deportation Direction or failed sufficiently to state in its reasons how it applied that paragraph in arriving at its decision. Paragraph 22(b) gives decision‑makers the following guidance: "while it is less likely that potential deportees who have spent the greater portion of their formative years in Australia will be deported, it is not the Government's intention that such people will never be deported."

The Tribunal noted that the applicant arrived in Australia as a child and, apart from two brief trips to Vietnam, had spent the whole of his adult life here. That, the Tribunal continued, was "an obvious factor in his favour, albeit not conclusive".

39 In Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238 the Full Court said, at par 27: "It would also be highly relevant for the Tribunal to note that the Direction makes it clear that deportation is a last resort in cases where the person spent his formative years in Australia and where continuing ties are with Australia. This would have particular force as the appellant has been in Australia for more than ten years. As the appellant was a minor for most of this time, his lack of status as a permanent resident might be seen as a bare technicality which permits deportation at all. 40 But what was there said must be read having regard to the facts of the particular case which was before the Court. I do not believe that their Honours intended to elevate to the status of a "primary" consideration a factor which the Criminal Deportation Direction explicitly treats as one of the "other", less weighty, matters to be taken into account: see the discussion of the authorities in Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483 at 511 (Weinberg J). I do not think that the Tribunal erred in treating the extent to which the applicant had spent his formative years in Australia as an obvious (non primary) factor in his favour, but (of course, given the existence of "primary" considerations) not conclusive. 41 Ultimately, the question is whether the Tribunal carried out a balancing exercise of the kind which is required. In my view it did. It acknowledged that there were "strong arguments" in favour of allowing the applicant to remain. There would be "severe hardship" suffered by the applicant, his fiancee and his family if he were deported (but the Tribunal referred, in that context, to par 22(e) and par 24(c) of the Criminal Deportation Direction); secondly, the applicant's low intellect might make it difficult for him to adjust to the changes in his life if he were deported to Vietnam (but on the other hand the applicant appeared to be "streetwise", was able to handle the organisation of drug trafficking and had "set about with some guile to falsify his evidence before [the Tribunal] to create a more benign picture of his criminal activities"). The Tribunal acknowledged that his links with Vietnam were tenuous; he had arrived in Australia as a child and, apart from two brief trips to Vietnam, had spent the whole of his adult life in Australia. 42 Having listed those matters, the Tribunal proceeded to its conclusion as follows (pars 37 and 38): "The deportation policy requires the balancing of a number of factors. Two of these factors are classed as primary considerations, which are to be given greater weight. However, this is not intended [to] stop other considerations being assessed as outweighing the primary considerations. In this matter, what must be assessed is community expectation of protection from criminals, the serious nature of the offences, the applicant's lack of remorse and appreciation of the impact of his offences, risk of recidivism, and that deportation of people who commit such offences may prevent others from taking their place. Although there are a number of factors in the applicant's favour which I have set out above, I am satisfied that they are not sufficient to outweigh the seriousness of the offences he has committed. The deportable offence was one of knowingly taking part in the supply of heroin. The applicant was subsequently convicted of conspiring to supply heroin, having been arrested just over three and a half years following his release from gaol for the first conviction, and only 20 months after serving five months for possession and self administration of heroin. Supply of heroin is an offence that is regarded by the community as very serious, and it would require extremely strong factors against deportation to outweigh this. I have therefore come to the conclusion that in the weighing up process, the factors against deportation are not strong enough to outweigh the factors favouring deportation."

In my view, the Tribunal weighed the various factors as it was required to do, and in a way which discloses no error of law. In my view, counsel for the Secretary rightly submitted that, upon analysis, to give effect to the applicant's submissions would be to undertake an impermissible review of the merits of the Tribunal's decision.

Conclusion 43 It follows that the application will be dismissed. The applicant should pay the respondent's costs. I certify that the preceding forty- three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate: Dated: 14 March 2000 Counsel for the Applicant: C Colborne

Solicitor for the Respondent: Australian Government Solicitor