Huynh and Minister for Immigration and Multicultural Affairs [1999] AATA 108 (1 March 1999)

Last Updated: 2 March 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 108

ADMINISTRATIVE APPEALS TRIBUNAL )

No Q1998/838

GENERAL ADMINISTRATIVE DIVISION )

Re HOAN HUYNH

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Deputy President Dr P Gerber

Date 1 March 1999

Place Brisbane

Decision The Tribunal affirms the decision under review.

.............(Signed).................................

Dr P Gerber

Deputy President

Catchwords

migration - deportation - applicant migrated to Australia aged 17 years from Vietnam - involved in sale of heroin - deportation order issued - review by administrative appeals tribunal - criminal deportation policy - factors to be taken into account- decision affirmed

REASONS FOR DECISION

1. In this case, the applicant, now aged 31 years (d.o.b. 6.7.1967) is a citizen of Vietnam who, with his brother Khai Quan Huynh, was sponsored as a migrant by his mother under the family reunion program, arriving in this country on 21.6.1985, ie just two weeks short of his eighteenth birthday.

2. Whilst the family was still in Vietnam, the parents divorced when the applicant was still young and the two boys were to all intents and purposes brought up by their maternal grandmother in their formative years, seeing their mother only occasionally, she having remarried in 1973 and given birth to a daughter, Nhi Le (d.o.b. 3 May 1974). Indeed, when the mother (now Mrs Le) fled Vietnam with her new husband and daughter, it was the grandmother who informed the applicant that his mother was no longer in the country. Mr and Mrs Le and their daughter arrived in Australia in July 1980, settling in Brisbane. It seems that the applicant's father was imprisoned by the Vietnamese authorities because of his association with the former regime and the last time the applicant saw him was in 1981, when he visited his father in prison. He does not know of his father's present whereabouts.

3. Shortly after arriving in this country, the applicant came to Brisbane, was found employment with the City Council, and then found himself a job in a factory in Fortitude Valley, finally settling down to steady employment with Cosco Holdings Pty Ltd, where he worked until he was retrenched on 1 June 1994 because of insufficient work being available for him. He lived with his family until shortly before the fateful events which led to the deportable offence, having up till then only come to the attention of the police on a drink-driving charge.

4. In June 1993, the applicant became acquainted with a girl - Ho Diep - and soon the couple were "going steady", intending to get married on 30 April 1994. The applicant borrowed some $4000 to pay for the wedding. He bought clothes, paid a deposit to a restaurant, ordered the invitations, paid a photographer and bought a ring. Alas, Ms Ho called the wedding off a week before the appointed day "because there were arguments". The borrowing of the $4000 was to have unfortunate consequences, the lenders being one Phuong Duy Vo and a Mrs Phuong Thi Trinh, two people destined to play a major part in derailing the applicant's future life in this country. They will be referred to when it comes to the deportable offence.

5. As a result of the applicant losing his job and having no source of income, he was unable to repay the $4000 to these lenders. In addition (although here the evidence is somewhat confusing), in cross-examination he claimed he also owed some $2000 on his Mastercard, $1000 on his Bankcard and some $8000 to his bank, (the exact amount of his debt never became clear), a loan relating to his car "but that car was in an accident".

6. Soon after the wedding was called off, the applicant renewed his friendship with one Than Van Nguyen, who lived with her mother and sisters at 3 Karil Street Woodridge. Although the evidence here is somewhat contradictory, I am satisfied that by early June 1994, having lost his job, the applicant had moved in with this girl and that they occupied the same bedroom. Than Van Nguyen was then aged 15 years (d.o.b. 25 July 1979). Her mother, Kim Thuang Tran, who gave evidence in these proceedings, was clearly aware of the relationship and did nothing to stop the (unlawful) intimacy. The girl soon became pregnant, giving birth to a boy - Tai - on 2 May 1995. By this time, the applicant was in goal, the reason his mother gave for not identifying him as the boy's father on the lad's birth certificate. The parties intend to get married once the applicant is released from goal

7. I now turn to the deportable offence. Being unable to repay the $4000 to the two lenders, "a friend showed me 'if you did that, you would have money very quickly - sell heroin'"

8. No sooner said than done, the applicant readily accepted that his debt problems could be solved by the simple device of selling heroin. Alas, he soon came to the notice of the police.

9. According to the police briefs prepared for the applicant's court appearances which were part of the T documents, in June 1994, the Drug Investigation Squad Crime Operation Branch of the Queensland Police mounted an undercover operation (operation "Flight") in Brisbane and on the Gold Coast, which soon identified the applicant as being involved in the drug trade. It seems that on 21 June 1994, an undercover agent, using an assumed name, made contact with the applicant and, "after a short conversation", the two arranged to meet later at the Durack Tavern. Shortly afterwards, according to the agent's court brief (T 22/23), the applicant, in company with the aforementioned Phuong Duy Vo, met the undercover agent at the Durack Tavern where Vo handed over a parcel of heroin and was paid some $2,500 by the agent. Having been given a phone number, the agent again contacted the applicant on 23 June 1994 and they agreed to meet at a certain spot. A short time later, the agent met the applicant, who was accompanied by Vo, and the three of them then drove to 3 Karil Street, Woodridge where all three entered the house. Quoting from the court brief:

"CPO [the agent] entered a bedroom with the accused (ie the applicant) and Vo. It will be alleged the CPO saw a set of scales with alfoil wrapped in gladwrap on them. CPO then handed $6,500 in $100 notes to the defendant and Vo handed him the packet containing 13.675 grams of heroin. It will be further alleged that on Wednesday 6 July 1994 a further conversation was had with Vo and an arrangement was made for Vo and the defendant to travel to the Gold Coast to visit the CPO's residence and supply him with a quantity of heroin. At approx 12.24 pm on that date Vo and the accused arrived at the CPO's residence where a short time later the three travelled to the Spit (Southport) where the defendant locates a package of heroin which he secretes in his pocket. They all then enter the defendant's vehicle and Vo hands the CPO a foil wrapped in plastic which contained 7.528 grams of heroin. CPO then handed Vo $5,500.00 in $100 dollar notes. Huynh then states that 'they have a lot of business to do today'. A further conversation was had with CPO, Vo and Huynh during which the accused participated in a conversation arranging to supply the CPO with a pound of heroin (gear) for $160,000. It will be further alleged that the accused drove Honda Accord Reg No 538 BRE during the above times. It will be further alleged that on Thursday 15 September 1994 a warrant was executed on 3 Karil Street, Woodridge under provisions of the Drug Misuse Act. That a quantity of powder wrapped in aluminium foil was located on the defendant's little sister, and that when questioned in relation to this the accused stated it belonged to him. It will be further alleged that the accused was conveyed to the Drug Investigation Squad for the purposes of a record of interview. That during this record of interview the defendant made certain admissions in relation to these matters. The defendant is unemployed and resides at 123 Roxwell Street, Ellengrove." It should be noted that the applicant does not have "a little sister" and that the drugs were found on his partner, Ms Van Thi Nguyen.

10. As a result of these events, the applicant was charged on 21 June 1994 at Brisbane with (i) supply of a dangerous drug on 21 June 1994 at Brisbane, (ii) possession of a dangerous drug on 21 June 1994 at Brisbane, (iii) supply of a dangerous drug on 23 June 1994 at Brisbane, (iv) "possession [of] things in connexion with supply" on 23 June 1994 at Brisbane, (v) supply dangerous drug on 6 July 1994 at the Gold Coast, (vi) possession [of] dangerous drug on 15 September 1994 at Woodridge.

11. It is not without significance that the address "3 Karil Street, Woodridge" is the address of the family of Than Van Nguyen, the applicant's partner and mother of his child.

12. When the applicant was brought before the court on 16 September 1994, a trial date was fixed and the applicant was placed on bail.

13. Whilst on bail awaiting his trial on the above charges, the applicant engaged in further drug sales. The court brief of the arresting officer reads as follows:

"It will be alleged that during the months of August and September Police from the Drug Investigation Squad, conducted a covert operation named "SENATE". The operation utilised the services of a Covert Police Operative using the assumed name Josh HARRISON.

It will be alleged that on the 28th August 1994 HARRISON (CPO) met with an Asian male, the accused in this matter, Hoan Quan HUYNH, at the car park of the Durack Tavern, Durack, where the CPO purchased a quantity of heroin from the accused. It is further alleged that during this meeting that the CPO was supplied with the accused's Mobile phone number.

It is further alleged that the CPO met with the accused on 5 further occasions for the purpose of purchasing heroin totalling $11,240.

It is alleged that the last meeting between the CPO and the accused took place on the 14th day of September 1994.

It will be further alleged that the dates the meetings took place as follows.

Charge 1. 28/8/94. CPO arranged to purchase heroin from accused and subsequently handed accused $620 and received 2 foils of heroin.

Charge 2. 30/8/94. CPO purchased 2 foils of white powder from accused at Inala for $750.00.

Charge 3. 1/9/94. CPO purchased 4 foils of white powder from the accused at Inala for $1000.00.

Charge 4. 2/9/94. CPO purchased 6 foils of white powder from the accused at Buranda for $2120.00.

Charge 5. 6/9/94. CPO purchased quantity of white powder from accused at Salisbury for $5500.00.

Charge 6. 14/9/94. CPO purchased 5 foils of white powder from accused and another male (co-accused this charge, Phuong Duy Vo) for $2500.

Accused was contacted by mobile phone by CPO on the telephone number given to the CPO by the accused.

The accused was subsequently spoken to by Police at the Brisbane watchhouse where the accused declined to be interviewed and was subsequently arrested and charged on the present charges."

14. Although part of the T documents, none of the above was put to the applicant during the two days of the hearing of this matter, and I only became aware of these details when I went through the T documents at the conclusion of the hearing and realised then that the case as it appeared from the T documents was vastly different from that which was put before the Supreme Court when the applicant faced his trial on the various charges detailed above. Thus the case sought to be made out before me was that the applicant was just a messenger who merely effected deliveries at the behest of the co-accused Vo. No attempt was made by the Crown to challenge that version.

15. In the circumstances, I called on both counsel and indicated that I thought that in the interest of procedural fairness, and for me to be able to reach the correct or preferable decision, it was essential that the applicant be recalled and these matters put to him. This was done and the hearing was resumed on 17 February 1999.

16. It now appears that when the indictments came before his Honour Justice Derrington of the Supreme Court of Queensland on 16 July 1996. The accused, who was represented by counsel, was charged, jointly with Phuong Duy Vo, Phuong Thi Trinh, and her daughter Thien Huong Trinh, of various drug and drug related charges. All pleaded "guilty" to these charges. In the case of the applicant, he pleaded "guilty" to eleven counts of supplying a dangerous drug, two counts of possession of things in connection with supply, one count of possession of a dangerous drug, and one count of trafficking.

17. At the resumed hearing before me, a copy of the transcript of the proceedings before Derrington J were made an exhibit. In his submission to the judge, the prosecutor submitted that the evidence suggested that the major villain in the piece was the aforementioned Mrs Trinh (a fact accepted by the judge since she received the heaviest sentence) and that the others were part of "a circle of drug suppliers connected with Rose Trinh".

18. The Supreme Court was informed that the police "sting" began on 8 June 1994, when the undercover police (CPO) met with some of the accused at Von's Snack Bar, a shop owned and operated by Mrs Trinh. Vo and the applicant each used a code name, the applicant's pseudonym was "Robert", and Vo became known as "Andy". On that occasion some drugs changed hands, Mrs Trinh telling the undercover agent that "Vo would look after him now", adding that he had some drugs available for sale on the Gold Coast. It was on this occasion that the applicant was introduced to the undercover agent who secretly recorded all conversations throughout the "sting".

19. Pausing here, I should point out that there are substantial differences between what was submitted by the prosecution to the court and the details of the offences provided to me by the Department on the resumed hearing. Thus in the details provided to me by the Department, it is said that in relation to the first charge relating to the accused, "CPO (assumed name Anthony Rees) contacted Huynh, arranged to meet at the Durack Hotel. At 12.25 Huynh arrived at the Durack Hotel with a male companion Vo. ... Huynh and Vo met CPO, who followed Huynh's vehicle to 5 Patrol St Jamboree Heights. Huynh supplied CPO with 10 half-weights of heroin and CPO handed Huynh $2,500." (my emphasis)

20. The above is not the case sought to be made out before the Supreme Court, where the prosecutor submitted that in relation to the first charge against the applicant, CPO first spoke to Mrs Trinh about getting "what was referred to as 'gear'" and was given Vo's mobile phone number, that he then spoke to Vo and that as a result of that conversation, CPO went to the Durack Hotel and that both Vo and the applicant arrived together. Having driven to 5 Patrol Street, "the police operative handed to Andy Vo ... in the presence of Robert Huynh an amount of $2,500 in cash. The man Robert Huynh was asked to count the money. The man Andy Vo handed the covert police officer a package which contained a number of foils, what's described as 10 half weights or half gram quantities of powder." (my emphasis). In other words, it was Vo, not Huynh who supplied the undercover agent with the drug.

21. The next charge, relating to the supply of heroin at 3 Karil St Woodridge again creates problems. The details provided to me by the Department merely state that CPO, Vo and the applicant went to the above address, "where all entered the house. They entered a bedroom where CPO saw a set of scales with alfoil wrapped in gladwrap on them. CPO handed Huynh $6,500 in $100 notes and Vo handed CPO a packet containing 13.675 g of heroin."

22. In the Supreme Court, the prosecutor submitted that what occurred in relation to that charge was as follows: "At that address the covert operative was invited into the bedroom ... and in the presence of both Huynh and Vo was shown a set of electronic scales with alfoil pieces and Glad Wrap on it together with a quantity of powder. The scales, in fact, showed something around 15 grams, but Andy Vo said the amount was 'spot on' 14. The covert police operative counted a total of $6,500 that he had on him in $100 notes. That was handed to Robert Huynh ... Andy Vo it was on that occasion [who] handed to the covert officer the wrapped up package and the covert officer and Andy Vo on that occasion had a conversation about the next sale of that kind for an amount of $6,000 rather than the six-and-a-half thousand which had been paid over on that occasion. ..."

23. Piecing the two together, it seems that either Vo or the applicant weighed some heroin (13.675 gm according to the police) which Vo then handed to the police. The significance of the above details relate to the scales and the evidence the applicant gave before me when confronted with the fact that he kept a set of electronic scales in a bedroom of the house he was occupying with his partner and her family, suggestive that he was "supplying" from these premises. I shall return to this when dealing with that aspect of his evidence.

24. The next - and most significant discrepancy - occurred in relation to the third charge committed on 6 July 1994. The information supplied to me states that: "CPO Rees spoke with Vo and arrangements made for Vo and Huynh to travel to the Gold Coast to CPO's residence. ... [after arriving in Southport] the three entered Huynh's vehicle and Vo handed CPO a foil wrapped in plastic, containing 7.528 g of heroin. CPO handed Vo $5,000 in $100 notes. Huynh stated they had a lot of business to to (sic) today. During the conversation between the 3, Huynh agreed to supply CPO with a pound of heroin for $160,000. ..." (my emphasis)

25. The prosecutor's submission to the court is very different. Thus he submitted that the following occurred:

"On 4 July 1994 the covert officer spoke with the man Andy Vo and arranged a sale to occur in two days' time to be for what was referred to as the same thing with the price on that occasion to be $6,000. As a result of that, on 6 July 1994 ... at 9.45 in the morning the covert officer spoke to Robert Huynh. There was a discussion about Huynh coming to see the covert police officer who I should mention was making out that he was operating on the Gold Coast and was supplying the heroin he was purchasing to people on the Gold Coast.

The discussion was to this effect: that Robert Huynh was to ring Rose Trinh first. Robert indicated he wanted the covert officer to ring Rose but was saying that there was no problem with the order which had been placed for that day. The police operative rang Rose Trinh. He told her that he'd been speaking to Robert and Robert and Andy were coming to see him on the Gold Coast. Rose Trinh said that she was going to go along as well and pursuant to that she was given by the covert officer his address on the Gold Coast and his phone number. At that stage Rose Trinh was saying that the three of them - that is, Rose Andy and Robert - would all be attending on the covert officer on the Gold Coast. Shortly after midday that day, however, Andy Vo and Robert Huynh alone arrived at the covert officer's unit on the Gold Coast. Andy Vo indicated that he had the order, the payment being $6,000 rather than six and a half thousand dollars. That was confirmed by the covert officer with Andy Vo. Andy Vo then said that they had to go and get it and as a result the three of them - that is, the covert officer, Andy Vo and Robert Huynh - left the covert officer's unit travelling on this occasion in a Honda CRX sedan which was owned by Andy Vo. They travelled from the police operative's unit in that vehicle to Main Beach at Southport.

During the course of that journey there was talk between the covert operative and Andy Vo about Andy Vo doing business with the covert police operative's brother from Cairns. Andy Vo referred to his ability to get good gear, that it could be done in a way which would secure a better price for the covert operative if he bought a larger quantity. Andy Vo spoke in terms of half pound or a pound, quoted figures of $80,000 for a half pound which represented some $10,000 an ounce or 150 to $160,000 for a pound. The covert operative indicated that he would talk to his brother about the proposition which was being advanced." (my emphasis)

26. In other words, far from implicating the applicant in the offer to sell a pound of heroin, it was Vo who was the eminence grise behind this venture. Mr Smith, who appeared on behalf of the Department, was unable to explain the discrepancy; it is certainly not able to be extracted from the court brief which formed part of the T documents and was tendered by Mr Smith.

27. It was submitted to the judge that at some point, Mrs Trinh told the undercover agent that both Vo and the applicant "were on a commission to sell, and that she gave them ten per cent."

28. The information supplied to me (and which was not challenged) alleges that on 28 August the undercover officer met the applicant in the car park of the Durack Tavern and purchased 2 foils of heroin for $620, and that the applicant gave the policeman his mobile phone number.

29. On 30 August 1994 CPO called the applicant on his mobile phone and arranged to purchase a further supply of heroin and in fact bought 2 foils "of white powder" for $750.

30. On 1 September 1994, CPO again calls the applicant on his mobile phone. The parties agreed to meet at Inala and CPO purchased 4 foils "of white powder" for $1,000.

31. On 2 September CPO contacts the applicant on his mobile and arranges to meet him at Buranda. They met as arranged and CPO purchases 6 foils "of white powder" for $2,120.

32. On 6 September CPO contacts the applicant on his mobile and they arrange to meet at Salisbury. Again the parties met as arranged and CPO purchases a quantity of "white powder" for $5,500.

33. On 14 September CPO calls the applicant on his mobile phone and arranges to buy more heroin from him. On this occasion the applicant, in the company of Vo, sells CPO "white powder" for $2,500.

34. On 15 September 1994, a warrant is executed at 3 Karil Street Woodridge where a quantity of "powder wrapped in alfoil" is located on the person of the applicant's partner. The applicant readily accepted that it was his. He was taken into custody and interviewed. It is alleged that he made certain admissions. What these admissions were is not known. He is charged with possession of a dangerous drug and trafficking in a dangerous drug. The "trafficking" charge relates to the supply of heroin between 28 August and 15 September 1994 as set out above.

35. Now on bail, the applicant engages in further drug dealing. On 5 October 1994, an independent police undercover operation named "Pique" identifies the applicant as being involved in drug dealing. On this occasion it is alleged to the court that a female called "Michelle" introduced the applicant to the covert police officers at Salisbury. "Michelle" acting as go between, led to the applicant coming out of the back of the store "with two silver foils and passed them to the covert police operatives." It was said that some $1,100 was handed to "Michelle".

36. The final offence with which the applicant was charged occurred on 3 November 1994, when, according to the prosecutor, the applicant is caught in yet another police operation codenamed "Emily" which resulted in an exchange of one foil of heroin for two pairs of sport shoes.

37. The applicant was arrested on 8 December 1994 and has been in custody ever since.

38. The following exchange then took place between the prosecutor and the judge:

His Honour: What is alleged to be his position? He was said to be in effect a commission agent for Mrs Trinh in respect of those deals in the first indictment?---Yes

His Honour: What are you saying about these other dealings? ... You seem to suggest he was acting on his own behalf?---He was acting on his own behalf in respect of those things charged in that indictment. In relation to indictments 4 and 5, there is an element of there being some go between. It is he who actually handed over the package. (NB. I have altered the punctuation in the transcript to make sense of what must have occurred in this exchange between prosecutor and judge).

39. When addressing the judge on sentencing, the applicant's counsel submitted:

"Your Honour, just in relation to the first indictment, he was working for Rose Trinh and he was on a commission basis. And in relation to the other matters contained in the indictment - more serious matters - for which he is charged, my instructions are simply he accepts the facts as outlined by my learned friend, the Crown. I have no further submissions to make on the matter.

40. The applicant agreed in evidence before me that he did not tell his counsel of Vo's involvement in the supplies which resulted in the charge of "trafficking" since this would have qualified him as a "dog" (prison argot for "grassing"). He claimed before me that in actual fact on each occasion when he was charged with "trafficking", he obtained his supply of heroin from Vo, and that he was merely fulfilling the role of what might be described as a commission agent.

41. In sentencing the accused, the judge noted:

"I take into account your early plea. I also take into account to your credit that you have worked for several years, that you entered into this lifestyle because of some gambling debts, but your activities have gone, it would seem, far beyond that.

I take into account to your credit that you have no previous convictions. You had a poor education, you have engaged in the dreadful crime of trafficking in heroin which is destructive of so many people. Although it is not suggested now that you were recruited by Mrs Trinh, you at least engaged in this freely of your own account with enthusiasm, and you continued to do so while on bail.

On account of trafficking, I sentence you to imprisonment for twelve years. I recommend that you be considered for parole after four years. On the eleven counts of supply, on each of them I sentence you to imprisonment for seven years. On the two counts of possession of things connected with those offences and one count of possession of a dangerous drug, you are convicted but not otherwise punished. In respect of your sentence of imprisonment, I certify that you have served 585 days imprisonment in respect of those counts from 16 September 1994 until 23 September 1994" (query 22 April 1996?)

42. In parenthesis I note that Phuong Thi Trinh was labelled by the judge as the "controlling influence in respect of this appalling offence that causes so much harm to other people" and was sentenced to 20 years imprisonment. Phuong Duy Vo was charged on five counts of supply of a dangerous drug and was sentenced to imprisonment for six years. This would suggest that the case sought to be made against Vo was that he was less involved in this drug operation than the applicant, who was sentenced to twelve years imprisonment for "trafficking", and seven years on eleven counts of supply. This, of course, is the converse of the case sought to be made before me, where it was said that Vo was the eminence grise and the applicant a mere footsoldier, delivering heroin to addresses supplied by Vo.

43. Is the applicant guilty of "trafficking", a charge to which he pleaded guilty? There can be no doubt that a conviction is unchallengeable and conclusive of the ultimate issue; see Minister of Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209. Does this prevent a Tribunal dealing with deportation from examining the circumstances surrounding the commission of the offence or matters relating to the trial itself, for the purpose of enabling it to make its own assessment of the nature and gravity of the applicant's criminal conduct? Again, may I look at the propriety of the conviction and/or the fairness of the proceedings on a plea of "guilty"? In this context, I note the observation by Morling J in Lai v Minister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 1:

"Whether these circumstances and matters are susceptible of examination, and the extent of that enquiry, will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from questions which a trial judge must determine.

The Tribunal's task includes assessing the deportee's character and personality, his criminal behaviour, the risk of repetition of criminal acts, the likelihood of his rehabilitation, the future risk to the Australian community if he remains here and the likelihood if he is deported." (at p 3)

44. Again, in Habchi v Minister for Immigration and Ethnic Affairs (1980) 43 FLR 230, Davies J held that an administrative decision relating to deportation does not depend solely upon the conviction relied on for deportation. The Minister's deportation policy indicates that a correct or preferable decision can only be given effect by enquiring into all material facts and circumstances relating to the deportee in question. In other words, the conviction for the deportable offence is not solely determinative of the issue, enabling the deportee to lead evidence of his innocence of the deportable offence for which he was convicted leaving it to the Tribunal to give such weight to the evidence before it which it considers appropriate.

45. Mr Hamlyn-Harris, the applicant's counsel, was at pains to paint his client as a mere messenger, delivering parcels of heroin at the behest of Vo (or Mrs Trinh), and thus not involved in "the business of unlawfully trafficking in a dangerous drug", the essential ingredient in the offence of "trafficking"; see s 5(1) of the Drug Misuse Act 1986 (Q). Whilst not minimising the offences his client committed, Mr Hamlyn-Harris, suggested that what was involved here was merely "supplying" a prohibited drug at the instigation of Vo (or Mrs Trinh), resorted to in order to pay off his debts to these co-accused, and thus of a lesser magnitude which, given his client's exemplary work record, his good behaviour whilst in prison, and the many certificates he has since obtained, as well as having an Australian partner and son would justify setting the deportation order aside.

46. In light of the discrepancies in the evidence before me as compared with the case sought to be made in the Supreme Court, I am prepared to give the applicant the benefit of the doubt and assume in his favour that his offence is not wholly encompassed in the crime of "trafficking" as defined. However, I have not been persuaded that the distinction is of great relevance when it comes to deportation. Thus, whilst the difference between "trafficking" and "supplying" is of significance in sentencing, it is less so in terms of the Government's deportation policy which, in para 11 of the (new) policy directive, states:

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

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

* Persons who embark upon drug-related crimes 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."

47. It is not challenged that the applicant supplied and sold drugs for financial gain and that his distribution had a commercial purpose - to pay off his debts. That is sufficient to invoke Australia's immigration policy which makes no distinction whether such sales are effected per se or per alium. For good measure, I am far from satisfied that the applicant was wholly truthful in his evidence before me. Thus I am satisfied that he knew all about the scales stored in a bedroom of his home, and his "explanation" to me was calculated to mislead me by initially claiming a lack of awareness of their purpose. It was only after I told him firmly that I disbelieved his evidence on this aspect that he conceded that Vo told him their purpose was to weigh the heroin deals, a fact which, in any event, he must have been aware of. Again, he was keenly alive to the fact that his activities were highly illegal, as evidenced by the fact that he handed a foil of heroin to his partner, no doubt in the hope that by this means it would not be discovered when the premises were searched.

48. What, then, are the factors which may be said to be in the applicant's favour?

49. A number of witnesses were called to establish the impact the applicant's deportation would have on each of them. The first witness was the applicant's mother, Lan Ngoc Thi Quam (Mrs Le). She explained that she sent her two sons to her mother to be looked after by her because she was working and did not have time to look after them. She made two unsuccessful attempts to flee Vietnam, losing most of her assets in the process. She and her husband and daughter finally succeeded in escaping from Vietnam in April 1980. She did not take her sons with her because she did not have enough money to pay the boat owners. The family first fled to Malaysia before being accepted as migrants in Australia. Since her arrival in Australia she has had a long working history before settling down to look after her husband and family. It seems that she has only a vague notion what the applicant has done and did not become aware that his offences were drug related until the police came and searched her house: "I don't know much about bail - he hide that from me." She now visits the applicant regularly in goal, albeit she only saw him once early on "because what he did was shameful for the family." She claimed that her son "showed some regret" for what he had done and wrote that he was sorrowful that his own son was born without his father present at his birth. It appears that there are no close relatives in Vietnam with whom the applicant has any contact. The witness confirmed in cross-examination that after the applicant moved in with Van Thi Nguyen, he rarely visited the family "except occasionally".

50. The next witness was the applicant's half-sister, Ms Nhi Le. She is a qualified mathematics teacher currently attached to Mareeba High School. She was unable to provide any useful evidence about the applicant apart from the fact that she remembers him as "playful and protective" whilst in Vietnam and very supportive of her in Australia, contributing financially to her school camp. She expressed great disappointment in her half-brother's action.

51. The applicant's stepfather was called who described his work history since arriving in this country, first as a fitter and turner with various metal factories until he had trouble with his hands as a result of which he was retrenched. He then learned locksmithing, providing a mobile locksmithing service at various markets and in the surrounding district. He appeared to me to be a model migrant, as did the wife and daughter. He claims locksmithing is an easy craft to learn and that he would teach it to the applicant when released and would provide him with the necessary equipment to do key cutting at local markets. He was confident that there is sufficient work available to make a living. He has not visited the applicant in goal since he does not want anyone in the Vietnamese community "to know about this. ... most Vietnamese came here working hard and look with disdain on anyone selling heroin."

52. The next witness was the applicant's aunt Nhuad Hong Thi Quan, the mother's sister who lives with the family. She was not able to shed any light on the events that occurred save that she stated that after the applicant lost his job at Cosco Holdings Pty Ltd he became depressed, often staying in his room and making no contact with other members of the household save at meal times.

53. Mr Hamlyn-Harris called the applicant's partner, Van Thi Nguyen. She still lives at Woodridge with her son, her mother and two younger sisters. She arrived in this country in July 1993 and is currently enrolled in Social Science at Yeronga TAFE College. She agreed that she and the applicant became intimate in June 1994, and when she discovered that she was pregnant in July of that year, she insisted on marriage. Alas, any immediate plans for a wedding became unstuck when the applicant was arrested in September 1993 and told her then that he would be spending some time in goal "for one to two years", whereupon the witness claims she told him that she could wait. Whilst the applicant was on bail, he told the witness that he was involved with heroin dealing. He also told her after he was released on bail that he still owed money and that he was forced to sell heroin again. She visits the applicant once a week, usually accompanied by Tai. She claimed that the applicant loved Tai a lot and that as soon as Tai saw his father "he was very happy." The witness was adamant that she would not accompany the applicant to Vietnam if the latter were deported. She intends to complete her studies, and because she has her mother and two sisters in this country, she would merely go and visit the applicant in Vietnam if he were deported.

54. The final witness was Van Thi Nguyen's mother, Kim Thuang Tran. She claimed the applicant, who was known to the family since their arrival in Australia in 1993, was very helpful to her, taking her eldest daughter to school, and assisting with the shopping. When asked what she thought about her daughter's relationship with the applicant, she replied: "At the beginning I think there was only a friendship. If there was to be a marriage, it could happen a few years later. Other times I think [applicant] is a good man, I can't stop the relationship." The witness assured the Tribunal that if the applicant were released and allowed to stay, it would cause "great happiness in my family. My daughter has a husband and my grandson a father."

55. That concluded the evidence.

56. The case is somewhat "borderline", on the one hand, the applicant has an Australian partner and son, whose welfare must be a primary consideration. In addition, the applicant led an exemplary life before he was retrenched and his prison record is excellent. On the other hand, the Government's deportation policy makes it clear that the expectation of the Australian community are likewise a primary consideration in determining whether a potential deportee should be deported. In balancing these considerations, I must have regard to the seriousness with which the community views the supply and dealing of highly addictive drugs, and the need to protect the community from those who freely and voluntarily choose to engage in their distribution. Government policy goes out of its way to emphasise that "offences involving heroin and other illicit drugs of dependency or addiction are of particular concern to the Government and the community." Thus on the one hand I cannot ignore the considerable hardship the applicant's deportation will have on his family, particularly his son, who will grow up without a father, his close ties with this country, nor his exemplary record both in prison and before embarking on the deportable offence. On the other hand, having carefully considered all the factors against deportation set out in the recent General Direction - Criminal Deportation - No 9, I am satisfied that when weighed in the balance, the scales come down in favour of deportation - it must be an exceptional case where so systematic a serial supplying of heroin will not lead to deportation. I should add that I am not satisfied that this man, if released, will not again engage in such conduct if financially embarrassed. Anyone who continues to engage in the sale of heroin whilst on bail for similar offences and at a time when he knew his partner is pregnant constitutes a potential threat to the Australian community.

57. I affirm the decision under review.

I certify that this and the fifteen preceding pages are a true copy of the decision and reasons for decision herein of Dr P Gerber (Deputy President)

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

M. Kiosoglous, Associate

Date of Hearing 8/9//17 February 1999

Date of Decision 1 March 1999

Counsel for the Applicant Mr Hamlyn-Harris

Solicitor for the Respondent Mr David Smith