Hong and Minister for Immigration and Multicutural Affairs [1999] AATA 60 (14 January 1999)

Last Updated: 17 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 60

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N98/208

GENERAL ADMINISTRATIVE DIVISION )

Re MINH DUC HONG

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Dr P Gerber, Deputy President

Date 14 January 1999

Place Sydney

Decision The Tribunal affirms the decision under review.

(Sgd) P GERBER

DEPUTY PRESIDENT

CATCHWORDS

Immigration - deportation - Vietnamese citizen - conviction for supplying heroin - opposed to conventional drug therapy - strong risk of re-offending - level of acceptable risk - hardship to applicant and his sister's family.

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

Re Gogebakan and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 544.

Gumus v Minister for Immigration, Local Government and Ethnic Affairs (1991) 13 AAR 520.

REASONS FOR DECISION

14 January 1999 Dr P Gerber, Deputy President

1. This is an application by Minh Duc Hong ("the applicant") to review a deportation order, dated 16 December 1997, made by the delegate of the Minister of State, responsible for administering the Migration Act 1958 ("the Act") pursuant to s 200 of the Act. The order stated that on the 9th day of March 1995, the applicant committed the offence of supplying a prohibited drug (heroin) to an undercover policeman, for which he was sentenced on the 14th day of March 1995 to a minimum term of twelve months imprisonment with an additional term of four months.

2. Mr Bruce Miles (solicitor) appeared for the applicant, Ms Carrington appeared for the Minister.

3. The applicant is an ethnic Chinese citizen of Vietnam, currently "residing" in Silverwater goal in immigration detention. He was born in Saigon on 23 May 1973, arriving in this country as a refugee on 25 March 1986 aged twelve years. He attended school up to second year High School, when he dropped out, and after a desultory casual employment history, set off on a series of offences, culminating in the deportable offence set out above. The following is a history of his various offences:

Place and Date of Conviction Offence and Date charged Sentence

Minda Children's Court Fairfield 5.1.90 Demand money with menace 5.10.89 12 months good behaviour

Fairfield Local Court Fairfield 16.3.92 Enter enclosed lands 9.1.92 Fined $250

Fairfield Local Court Cabramatta Possess prohibited drug (cannabis) 18.5.92 Fined $300

Fairfield Local Court Wetherill Park Possess prohibited drug Supply prohibited drug Resist arrest 10.2.93 Fixed term 6 months Fixed term 4 months Fixed term 4 months

Fairfield Local Court Cabramatta Supply prohibited drug Assault police 13.3.93 Fixed term 4 months Fixed term 4 months

Fairfield Local Court Wetherill Park Supply prohibited drug (heroin) 10.2.94 Fixed term 4 months

Fairfield Local Court Cabramatta Possess prohibited drug 6.3.94 Fixed term 1 month

Liverpool Local Court Cabramatta Possess prohibited drug (2 counts) Supply prohibited drug (2 counts) Goods in custody (2 counts) 9.3.95 12 months imprisonment 12 months imprisonment 6 months imprisonment

Fairfield Local Court 24/3/96 Possess prohibited drug Supply prohibited drug Fixed term 4 months Fixed term 1 month

Fairfield Local Court Cabramatta Supply prohibited drug 13.3.97 12 months plus 4 months additional reduced on appeal to 9 months

Fairfield Local Court Fairfield 31.8.98 Possess prohibited drug Goods in Custody Fixed term of 3 months Fixed term of 3 months

4. Legislation

The relevant provisions of the Migration Act 1958 ("the Act") are:

Deportation of certain non-citizens

200. The Minister may order the deportation of a non-citizen to whom this Division applies.

Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes

201. Where:

(a) A person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;

(b) when the offence was committed the person was a non-citizen who:

(i) had been in Australia as a permanent resident:

(A) for a period of less than 10 years; or

(B) for periods that, when added together, total less than 10 years; or

(ii) ... ; and

(c) the offence is an offence for which the person was sentenced ... for a period of not less than one year;

section 200 applies to the person.

5. Mr Miles indicated in his opening that he intended to interpose Dr Stella Dalton, a well-known, albeit according to Mr Miles, a somewhat controversial psychiatrist, who is regarded by many as a leader in the treatment of drug addicts and who claims to have pioneered the methadone program in this country. She has never seen the applicant. When asked about heroin addiction, she gave a graphic description about how the addiction develops and what it does to the person:

"Now when a person becomes addicted, it starts insidiously. They start taking a little bit, they don't intend to become addicted - somebody generally suggests they try it. Once they become addicted, the picture changes totally. They are then obliged to continue taking the drug or they get exceptionally ill, they go through withdrawals which are excruciatingly painful and they have this total need to obtain the drug by any means to avoid this terrible illness, those terrible feelings. Therefore, people who are addicted, whether they be doctors who are addicted to pethidine, or street kids who are addicted heroin, they all have to obtain their drug."

6. The doctor went on to say that addicts become deceitful and go in for varying crimes, crimes which change depending on the person's background.

"A doctor will lie and do everything they can to obtain pethidine; you will find the street person selling, obviously to make enough money to be able to obtain their drug and doing petty crime in order to obtain money to get the drug."

7. Pausing here, having dealt with numerous drug addicts in deportation cases, many of whom have resorted to armed hold-ups and other crimes of violence to obtain their supply of drugs, the description of drug-related offences as "petty crimes" seems somewhat of an understatement.

8. Having advised Dr Dalton that the applicant in this case had been convicted of selling heroin ("not in a big heroin deal or anything of that nature"), Mr Miles asked the doctor whether it was fairly common in her experience "this practice of committing this crime of selling heroin for the purpose of obtaining their own supply?", Dr Dalton replied:

"Absolutely ... definitely. All heroin addicts - I mean you would have to be a millionaire otherwise to be able to continue paying for it. Heroin addicts all have to sell because they buy, they sell some, and then they can afford to take it themselves."

9. Dr Dalton was firm in her conviction that methadone was the only effective treatment for heroin addiction, being the only thing "that turns the drug addict into somebody who is totally normal while they are on methadone." She rejected all other forms of treatment as "totally futile", noting that the percentage rate of recovery in drug-free environments, like Odyssey House, is "zero point 5 per cent". She was also highly critical of the treatment the applicant had undergone at the Scott Street Clinic (a State-run drug treatment centre) when told by Mr Miles that the daily dosage of methadone the applicant was given was in the range of 25 milligrams, describing it as "almost useless". In her view, any dosage less than 100mg per diem would be ineffective. At that stage it was not known that the applicant resisted higher dosages when these were suggested to him by his treating doctor, Dr Halder, at the Scott Street Clinic. Indeed, the applicant's clinical notes, which I asked for (with the applicant's consent) which became exh C, are redolent with notations that when on 40 mg, the applicant "wants to come down" (20/12/1994), "wants to come down 30mg", "wants to come down" (10/1/1995), "wants to come down" (31/1/1995). By February 1995, the applicant appears to have been on 10mg. By early 1996, according to the notes (which are for the most parts illegible), his attendance at the clinic was irregular and he was still using heroin at the rate of "5-6 caps/day". His methadone dosage is then gradually increased to 75mg per day.

10. To the extent that I can decipher Dr Halder's notes, it seems that the applicant continued to abuse heroin, on and off, throughout his treatment period. The last entry, dated 4/8/1998, states: "missed 3 days". It was one of many occasions that the applicant dropped out of the treatment program.

11. At the conclusion of Dr Dalton's evidence, Mr Miles called the applicant. His spoken English is barely adequate; his native tongue is Cantonese and he speaks Vietnamese. Shortly after his arrival in this country, the applicant, then aged 12 years, moved into the home of his aunt in Mt Pritchard with his two brothers and older sister, attending the local Primary School. The accommodation being somewhat crowded, the sister decided to move out and she and her brothers took up residence in Cabramatta, the applicant attending the local Primary School nearby. In due course, the sister got married and moved to Fairfield West, the applicant and his brothers coming to live with the newly wedded couple. The applicant was thus again forced to move schools, and because he had a language problem at that stage and couldn't keep up, he left school for good, having reached the second term of grade 9.

12. After a brief stint at working "making doonas and pillows and that", the applicant lost his job because there was not enough work for him. He then ran away from home for a couple of weeks "and that's where I began to meet these people, my friends and that." These friends were ethnic Chinese and, it seems, persuaded him to try drugs. Just what occurred during these two weeks did not become clear:

"I can't say that they got me into trouble because I was with them so - I got no money or anything, I got absolutely nothing. So when I do something, when they got money, they buy me food and that, and when something happen, I can't just sit there. So whatever they do and they ask me. And so I deal with that, for say, two weeks and I went home."

13. It transpired in evidence that it was during these fateful two weeks that the applicant smoked both marijuana and heroin.

14. In quick succession the family moved back to Cabramatta, the applicant lost his job again: -

"making fences and painting and all that kind of thing and I was there for a short time and they sack me. ... I moved back to Cabramatta and I lost my job and I began to went out. I go out and meet my friends again. So that's where I actually got into it. ... I go out and I meet my friend again, my old friends, and he was on drugs and he offered me to try it plus I tried it before, so I couldn't say 'no'. So I just tried it and that's where I began to get hooked into it".

15. From that time onwards, the applicant admitted to using drugs regularly and soon became addicted to heroin. He agreed with Mr Miles that he paid for his drugs by committing crimes. He also agreed that after he was dismissed from his last job, he never worked again ("No, I was using drugs then, so I didn't.").

16. His first prison sentence resulted from a conviction for possessing and supplying a prohibited drug. Prison did not affect his addiction because within two months of being released he was back on heroin again:

"...because then I was doing nothing, day in, day out, doing nothing, plus I was living in Cabramatta ... I went back to my sister's place and they live in Cabramatta and I got no job then, and every time I go out I have to pass Cabramatta Station, or even shopping to get a video I always meet my old friends. So that's why I begin to go back into heroin again."

17. The applicant's evidence as to his attempts to go onto a methadone program is difficult to follow. It seems that he made several desultory attempts to get on to such a program, but that these attempts were never serious and, in any event, interrupted by imprisonment. He was quick to pick up from Dr Dalton's evidence that the dosage of methadone he was given was not enough to stop his craving for heroin; what he failed to mention was the fact that he was highly suspicious of methadone and kept insisting on receiving a lower than recommended dosage. This will become clear when I turn to the evidence of Dr Halder who, at my insistence, was called to give evidence. Certainly whatever methadone the applicant was given was clearly ineffective since he went back on to heroin the day he was released from his second period of goal ("On the first day I got out of goal, the first stop is Cabramattta because I live there. Not long later, maybe say not even one week before, I got back on the drugs again").

18. Although quick enough to blame the inadequate dosage of methadone for his addiction, he failed to grasp the life raft thrown to him by Mr Miles.

Mr Miles: Well, the way Dr Dalton described it is that if you have enough, if you have the right dosage, it can provide a very big solution to your heroin addiction. Did you understand Dr Dalton say that?---Yes.

Mr Miles: Well, if you were given a chance again, would you take that sort of treatment, that is enough methadone to give you proper treatment?---Well, you see, today I believe that I don't need the methadone. The only reason why I got on the program is because I don't want to go to goal and I want to stay off drugs, and methadone is not good, because after all, it's drugs, and in the long term it does kill you. It's bad for me, it's bad for you. So if it's possible, I don't want to get on the methadone again, no please, some other - - -

19. After further prodding by Mr Miles, the following occurred.

Mr Miles: Now assume that Dr Dalton is right, would you try the methadone program again, that is the proper methadone program, a full methadone program?---If I do, and then how am I going to get a job, or work? I'd be going off my head.

20. Mr Miles finally succeeded in getting a grudging agreement from applicant to go on a full methadone program, after repeating Dr Dalton's claim that a "proper" program would enable him to work and live a normal life. Having listened to the whole of the evidence, and in particular the evidence of Dr Halder, I do not believe that if allowed to stay in this country, the applicant would submit himself to a "proper" methadone program, he being still convinced that it would ultimately kill him. In any event, he has persuaded himself that he is already cured and sees no need to undergo any form of treatment. Having observed him closely in the witness box, I am firmly convinced that the applicant is a weak-willed young man, easily led by others and that he will revert to his old drug habits the moment he meets up with his friends, all of whom seem to be involved in the drug culture.

21. Cross-examination established that one of the applicant's brothers has since died and he has little contact with his other brother and claims he does not know where he lives (as I understood the evidence, this brother lives with the applicant's sister and attends the local High School). He claims to have has a close relationship with his sister, her husband and their two young children. He once again evidenced his reluctance to take methadone, explaining to Ms Carrington:

"Because when I take the drugs, I don't want to take more methadone because that way it will bring my dose will get more higher. I need more and more drugs. So that's the reason why. If it's possible, I don't want to take two at the same time, or even one of them."

22. Clarifying the reference to two drugs, Ms Carrington confirmed that whilst on methadone, the applicant continued to use heroin. His "explanation" (pp 27/28 tr) for using both drugs is too confusing for me to get a proper understanding of it. To the extent that it was suggested that the applicant did not attend the clinic regularly because there was a charge $6 for each methadone treatment, I reject this explanation as the reason for his failure to pursue the program diligently. On the contrary, using both heroin and methadone at the same time shows a total lack of commitment to wean himself off his addiction. At the conclusion of his evidence, the following took place:

The D President: Mr Hong, if I understand your evidence correctly, you don't want to go on to a methadone program because you think you can beat this problem without it? What that be a fair summary of your evidence?---Yes.

23. The applicant went on to add that he would agree to go on to a methadone program if that were the only way he could stay in Australia.

24. When asked by Ms Carrington where he would live if he were allowed to stay in this country, the applicant replied that he "would probably choose to go to another State". He claimed to know someone from Vietnam who now lives in Adelaide. However, on close questioning, it transpired that he had not spoken to or written to this person for at least five years, has not discussed coming to live with him and merely has his phone number. I find these "plans" so vague as to dismiss them from consideration as a realistic option which would wean this man off heroin.

25. Ms Carrington confirmed with the applicant that after he had appealed his deportation order to this Tribunal (20 February 1998), he was again convicted of possession of a prohibited drug in August 1998 and sentenced to a term of imprisonment. His explanation for this was that when he appealed the deportation order:

"I was already in drugs before - before I know that they going to deport me - I was already on the drugs then, so that's why my family's trying to get help from all different people, see, it happened afterward."

26. When asked what would happen to him if he were sent back to Vietnam, the applicant replied that he would probably be sent to goal because he escaped from Vietnam (aged twelve years). In response to this, Ms Carrington tendered a document emanating from the United States Department of State Country Reports on Human Rights 1997, which relevantly provides:

"Vietnam cooperated with the international community in implementing the Comprehensive Plan of Action which was in effect between 1988 and June 1996, to resolve the situation of the thousands of Vietnamese who departed the country illegally. In 1988 Vietnam had signed a memorandum of understanding with the United Nations High Commissioner for Refugees (UNHCR) to increase acceptance of voluntary repatriates from camps in countries of first asylum provided that there was financial assistance. The agreement included a commitment to waive prosecution and punitive measures for the illegal departure from Vietnam of persons under the UNHCR voluntary repatriation program. ... More than 109,000 Vietnamese have returned from countries of first asylum. Of those, more than 95,000 returned voluntarily. Another 13,000 were repatriated involuntarily. A group of 522 was deported from Hong Kong, China during the year under a bilateral Hong Kong-Vietnam agreement. These persons had committed crimes in camps of first asylum, were tried and convicted, and had served jail sentences in the Hong Kong Special Administrative Region. The UNHCR, which monitors a high proportion of repatriates under all categories, report that they do not face retribution or discrimination. There was no credible evidence to substantiate claims that refugees returned under UNHCR auspices were harassed or persecuted because they had previously had fled the country. Individual returnees have faced legal action after return on charges of illegal activities carried out either before departure (other than illegal departure) or after return."

27. Ms Carrington tendered the part of the penal code of Vietnam dealing with narcotic drugs. Thus, article 203 of which provides:

1. Any person organizing the use of narcotics in any form shall be subject to a term of imprisonment of six months to five years.

2. If the offence entails serious consequences or constitutes a serious case of recidivism, the offender shall be subject to a term of imprisonment of between three and five years

28. The evidence satisfies me that if the applicant were returned to Vietnam, he would not face persecution or harassment (unless he commits further offences in that country). Whether or not Vietnam accepts this applicant, Australia not being the country of first asylum, is not a matter which can affect my decision.

29. On the second day of the hearing, Dr Halder was called on behalf of the applicant. He is attached to the Scott Street Clinic and specialises in the treatment of drug addiction. He was in charge of the overall treatment of the applicant. When told that Dr Dalton was highly critical and scathing of the dosage of methadone administered to the applicant, Dr Halder explained that Dr Dalton "treated mostly Anglo-Saxon patients", whereas one-third of the clinic's patients were Asian, most of whom smoked heroin rather than "shoot up" intravenously. It seems that the "smokers" have to start off on a lower dosage:

"You've got to be very careful. If you give them a very high dosage initially, they can overdose and have an overdose on methadone. Their pulse is very low and it's very difficult for them. So you've got to be cautious with Asian clients when they are smoking especially."

In any event, the applicant was on 60mg until August 1998, when he wanted "to come down to 20mg because he wanted to go to Odyssey House "because Odyssey House wants you to come down to 20mg." Dr Halder thereupon reduced the dose to 20mg from 60mg: "I last saw him on the 4th of August 1998 and I made a note because he missed three days and he got his last dose on the 4th of August and then that was the last I heard of him."

30. The doctor went on to add:

"Now the person that's shooting up will definitely need a very high dose to really block off with methadone, whilst on a smoking [addict] you have to start him on a lower dose and reach an adequate dose to cover that. Now if you recall that Mr Hong was smoking from the beginning. ... Most Asian clients actually smoke, and then, when they can't manage their addiction, that they need lots more, [and] then they convert themselves to IV use. So we also have therapists in the West - in around Cabramatta we've got to be careful with Asian clients. You don't put them on a higher dose ... If you give them too much, they are stoned out. ... Now Asian clients, even though you recommend a higher dosage, due to some factors - number one is cultural, and number two a fear of methadone being a western medication. The Asian clients as a whole, if you go to the books in Liverpool and Jacaranda - which is a public clinic - you will find that most Asian clients are on a low dose, they want to be on a low dose. Even though as a therapist you recommend they should be [on] a higher dose, but they want to be on a lower dose due to a number of factors. You cannot take it away from the clients. If Asian clients ... want to be on a low dose, you have to put them, even though you counsel them: 'Look, this is a low does, it's not going to help you', but they want to be on methadone and still on a low dose. That is the variance between Dr Dalton's - you know, when she put forward yesterday - that is our observation in the last decade, in that Asian clients don't want to be on a higher dose. Now Asian clients, those that have been through a revolving door, like for instance they will come and go with methadone. You will find a lot of these clients - and you will find with Minh Duc Hong from 1994, I can tell you really right now, he has been to the methadone clinic, coming in and out, 10 times from 1994, and that shows you one of the things about Asian clients, they are coming in, they expect methadone like - a comparison like for instance if you went to a doctor and asked the doctor: 'I've got a sore throat' and the doctor says: 'well, Amoxyl three times a day was going to cure your sore throat', Asian clients come in with that concept - that methadone is a cure all. Well, if you have been on methadone for two weeks, it's going to cure my heroin habit. If they come in with that concept, obviously the outcome is bad because after two weeks they are going to drop out, and they come back again two weeks later and say: 'well, it didn't take my heroin addiction away'. Now heroin addiction, as you know, is a chronic relapsing condition. It comes and goes. And you will find in the case of Minh Duc Hong, he has been coming in and out, expecting the cure, and they are on a low dose, and that's their request. You can't force them to be on a higher dose. And that's an overall observation, and if you want to know, that's why you find a lot of Asian clients are on a low dose."

31. Dr Halder also disagreed with Dr Dalton's view that if put on a higher dose, the patient would quickly become normal and be drug-free, noting that he had seen a lot of patients over the years who "have been free for a while but again they come back and use again."

32. When Mr Miles sought to get a concession from the doctor that that applicant would, on his own evidence, take higher dosages of methadone on "strict medical advice", albeit reluctantly, the doctor replied that the applicant was offered a higher dosage before and didn't take it.

33. In cross-examination, Dr Halder stated that the applicant:

"was not too keen on methadone because methadone was entrusted or thrust upon him ... it's like he had an attitude that was: 'I don't want to be on methadone [but] because the court said so or because ... my brother-in-law told me, so that's why I'm on methadone. I mean he was not himself motivated to really to be on methadone as such."

Ms Carrington So by comparison to other patients that you've seen, would you describe him as committed to the methadone program?---Well, if you look at the file, if somebody has come on and off from methadone from 1994 to 1998 about 10 times compared to other Asian clients - not to take anything on my Asian clients who've started methadone and would every day dose for two years and slowly come off, and I shook their hands and said: 'Good luck' - I think his progress is not good at all, [he] is not motivated at all."

34. Dr Halder proceeded to outline his treatment philosophy relating to methadone dosages. When told that the applicant had said in cross-examination that he had told the doctor that his dosages were not working for him and had claimed that the doctor had simply told him what to take, the doctor replied:

"Well, he said: 'I don't want to go up but I'm happy with on this dose', but his amino-urines were positive [for] heroin use. Well, you see, one of the things over the years, I mean, I have a harm minimisation attitude to the use of heroin addition. We cannot make heroin users completely stop if they're minimising the harm they have already done to themselves. So in a methadone clinic, the clinic will say: 'Look, I was using [heroin] seven days a week', and two weeks later they'll say 'I'm using twice a week'. For me, that's an improvement, and so therefore if they are on methadone at 40 mg, and they say: 'Look, I'm using once a week, doctor', I mean I have a trust with them and then I'll say: 'I think the dose is inadequate, you should go up'. If the client says: 'No doctor, I don't want to go up and I am happy on this, but I'm using once a week', I'll leave it at that because they have made a decision whether to go up. But you have to counsel them that this dose is inadequate, 'you have to go up'. Now it's their prerogative as a treatment, and a therapist not to force them to raise their dose up; you gave them the option. And so I gave him the option, which he didn't want. So I kept it at that."

35. When advised by Ms Carrington that the applicant told the Tribunal that he was reluctant to go back on the methadone program and would only do so as a last resort and was considering other options, such as Odyssey House, Dr Halder explained that Odyssey House and the William Booth Institute did not use any drug-type program but relied instead on behaviour modification. The witness doubted that the applicant would benefit from such a program, given the fact that he had little schooling and no employment skills:

"All he knows is how to survive on the street and drug-related selling, with dealing, wheeling and dealing, Odyssey House will only alter his way, his behavioural modification, that's the intention of Odyssey House. Whether that's going to keep him off the drugs is - I have my doubts there."

36. When told that if allowed to stay in Australia, the applicant would be living with his sister, her husband and their young children aged about eight and eleven, as well as his younger brother who is now completing year 12 at High School, and that the family would contemplate moving away from Cabramatta (the "headquarters of drugs" according to Dr Dalton) to Granville, Dr Halder was unimpressed that this would have a marked impact on the applicant's drug problem. For one thing, Granville was a mere three stations away from Cabramatta. For another, there would be no-one to ensure that the applicant was not taking drugs: "What guarantee is there that he is going to use his bedroom and be stoned out? That would be a very bad influence on the growing of his sister's children."

37. Mr Miles called the applicant's brother-in-law, a hard-working and impressive witness who was clearly overcome by the magnitude of the applicant's offences and the impact his deportation would have on his family. He claimed the applicant's transgressions were already causing strains in the marriage and if the applicant were deported, he feared that his marriage might not survive the resultant stresses this would cause. The witness stressed that he would gladly support the applicant if allowed to stay in Australia. He would even be prepared to leave his home in Cabramatta and move to, say, Granville if this would assist the applicant to stay off drugs

38. Mr Miles then called the applicant's sister, Ms Hoa Hong, who came with the applicant to Australia in 1986. She has two young children. She pointed out that sending the applicant back to Vietnam would pose considerable difficulties for him in that there are no relatives or even friends there who could assist him. She echoed her husband's evidence that she would gladly take the applicant into her home if he were allowed to stay in this country. The witness supported her husband in his desire to move to another suburb. Ms Hong claimed that she had advised her brother to stop taking drugs

"I wouldn't say that he didn't listen to our advice, he did. He did listen to our advice and our saying - some of the advice, and the thing is that if by himself, [he] is fine. But then when friends come along, his friends, then he move a bit and he'll change his mind a little bit. ... Whenever he leave the house, usually I talk to him, kind of say a few words to him, and he always come and say 'I'll come back very soon, come home very quick.'"

Ms Carrington: But that's not always the truth that he tells you?--- Yes, sometimes he will tell lies to me, but then it's not always. Most of the time he tell the truth. Not every time he lies to me

39. The witness added that she had sought the help Mr "Tass" (Mr Hajipanayotis), a retired gentleman aged nearly 79 years (d.o.b. 23/3/1920) who has had major heart surgery performed by the late Dr Victor Chang, saving Mr "Tass'" life albeit leaving him severely disabled, and thus unable to give evidence. It seems (according to his affidavit), that since his heart surgery, Mr "Tass" has found religion and made it his mission in life of "helping all people and mostly Asians, since [an] Asian person helped me to live a bit longer after six European Professors refused ... to operate on me because I was in [a] very dangerous state of heart attack."

40. At this point I indicated to Mr Miles that if Mr "Tass" was unable to give evidence, even via a telephone hook-up, I would not be prepared to act on his voluminous affidavit if it was sought to establish that this gentleman was able to cure the applicant of his addiction, holding that in fairness to the respondent, Ms Carrington should have the opportunity to cross-examine the deponent. Mr Miles chose not to avail himself of the telephone option because of Mr "Tass'" heart problem and he was not called.

41. Ms Hong confirmed, in answer to a question by me, that she feared for the security of her marriage if the applicant were deported: "Because of that worry, so there will be anger, you know, we'll quarrel a lot." When finally pressed she agreed that her marriage would survive the applicant's deportation. (p 30 tr)

42. In seeking to establish the zeal and reformative skills of Mr "Tass", Mr Miles called a young lad, Thanh Ho, aged 22 years, who resides with Mr "Tass". Mr Ho arrived with his parents in this country from Vietnam in 1982, but has been living with Mr "Tass" for some years. It seems that Ho himself had a heroin problem and that he is now drug-free thanks, so it is said, to the help of Mr "Tass", the same help that Mr "Tass" is willing to extend to the applicant if allowed to remain in this country. When asked whether there was any possibility of "being mixed up with bad company or anyone that would get you into trouble with drugs", the witness was adamant that could not possibly occur in the "Tass" establishment.

43. In cross-examination, it transpired that Ho had been on heroin "on and off" for two to three years, had never been apprehended by the police and had gone off the drug through the help of Mr "Tass" after many attempts at "detox" proved ineffective:

"I just gave it up all for once because Mr "Tass" taught many other Vietnamese, including myself and others, the catastrophe of what he's doping to himself ... and how destructive it is and how it doesn't make them feel happy or to move on to their good future, to have a better lifestyle."

44. It seems the "Tass" household consists of Mr "Tass", his sister "Poppy" who does the cooking and Mr Ho. When asked by me what he does for a living, the witness replied: "Well, I'm here to help Mr 'Tass' to do this - to help people, about this court, and then I'm going to go for a job immediately." Mr Ho pays rent to Mr "Tass", presumably out of his unemployment benefits.

45. Mr Ho impressed as an earnest young man, dedicated to Mr "Tass" and evangelical in his fervour to stay off drugs and the "Tass" method of rehabilitating drug addicts. Alas, that is a far cry from the applicant, who lacks such motivation and who failed to convince me that he has any real desire to accept treatment which is likely to be effective, and absent effective treatment, he will almost certainly revert to smoking heroin. Like many other Asians (according to Dr Halder), the applicant resists the one drug that may prove effective, believing that it will kill him, and will only take it in dosages which are inadequate to cure him of his addiction. His attempts to persuade me that he will seek other methods to cure him of his addiction have not convinced me either as to the genuineness of his motivation, or the effectiveness of the "alternative medicine" of his choosing.

46. The applicant may only be a foot soldier in the insidious drug trade, and his heroin dealing designed merely to feed his own habit, but it is enough to constitute an offence sufficiently serious to invite deportation. It is Government policy - a policy which I have no qualms in accepting as eminently reasonable - that "it would be invidious if non-citizen residents who seek to profit from the supply of drugs, whether or not that profit is motivated by their own need for illicit drugs, were likely to be allowed to remain in Australia." This man has grievously abused Australia's liberal immigration policy and his deportation will, hopefully, serve as an object lesson to other non-citizen residents who are tempted to deal in illicit drugs, that Australia will not tolerate such conduct, and if apprehended and convicted, deportation will generally follow as an inevitable consequence of such criminal behaviour. True, there may be instances where the Minister (or this Tribunal) is satisfied that a non-citizen resident is cured of his addiction and is likely to make a significant contribution to this country. This is not such a case.

47. I am mindful that this man's deportation will have serious implications, both to him, his sister and her family. However, consistent with deportation policy, most weight should be given to the need to protect Australian society against criminal behaviour; conversely, less weight should be given to the views of the offender and his family and to the possibility of adverse consequences for them of deportation. For good measure, this man has little going for him. His English is barely adequate, he has no qualifications or usable skills apart from his brawn (which proved inadequate in his previous employment mending fences), his prison record is such that I am not hopeful that he will easily adapt to a free society. It says much about his character that he committed yet another drug-related offence whilst awaiting a hearing in this Tribunal designed to set his deportation order aside.

48. In summary, this man has made little contribution to the Australian community and is unlikely to do so in the future, such contribution that he has made through desultory labouring jobs is outweighed by the cost to the community due to his offences, his periods of imprisonment and his treatment for his drug addiction. I accept the respondent's submission that the applicant has a high risk of re-offending and is unlikely to make a successful transition to lawful community life.

49. It was urged upon me by Mr Miles that the applicant, having come here as a young child and became a drug addict whilst in this country, Australia has, as a matter of comity, an obligation and responsibility to keep him here. I reject this argument for a number of reasons. Firstly, it is somewhat harsh to blame this country for the fact that the applicant is a drug addict - he has chosen to associate himself exclusively with the local Vietnamese community, and it was members of that community which persuaded him to try addictive drugs. Secondly, the applicant has made little attempt to assimilate into the broader Australian community - although arriving here as a young child, he still cannot read English and required an interpreter to understand the evidence. Finally, Mr Miles' submission echoes that expressed by Deputy President Bannon in Re Gogebakan and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 544 in which the learned Deputy President expressed the opinion that:

" ... if Australia is prepared to accept migrants with children of tender years, it is not reasonable to deport to foreign lands the child of an Australian citizen simply because the child is a criminal and was born in a foreign country and is not naturalised. It is neither compassionate nor in the best interest of Australia to deport children arriving as migrants because of later crimes."

50. With all due respect to the learned Deputy President, I am satisfied that this view is neither consistent with the legislation nor the intention of Parliament. For good measure, it led Keely J in Gumus v Minister for Immigration, Local Government and Ethnic Affairs (1991) 13 AAR 520 to observe that learned Deputy President in Gogebakan had failed to explain on what basis it was "not in the best interest of Australia" to deport persons who arrived in this country as children but were later convicted of serious crimes. I perceive the Tribunal's function is to apprehend what is an acceptable level of risk, and to assess whether a particular applicant in the particular circumstances of his or her case, is at an unacceptable level of risk; see Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98. I am satisfied that this function is not qualified in cases where an applicant arrived in this country as a child.

51. At the conclusion of the evidence and submissions, I affirmed the decision under review, stating that: "I am able to give my decision here and now and will deliver my considered reasons in due course. I have listened carefully to Mr Miles' careful and eloquent submission. However, notwithstanding Mr Miles' persuasiveness, I am satisfied that the deportation order of 16 December 1997 must be affirmed since I am satisfied on the evidence that to keep Minh Duc Hong in this country constitutes an unacceptable level of risk of re-offending, the nature of apprehended offences being such that it places at risk the lives and welfare of the Australian community. As I said before, this doesn't constitute my reasons, but merely my decision. In fairness to the parties and in the event of an appeal, I will give my reasons for decision as soon as possible."

I certify that this and the 19 preceding pages are a true copy of the decision and reasons for decision herein of Dr P Gerber, Deputy President.

Signed: Damian Hannan

Associate

Date/s of Hearing 13.1.99, 14.1.99

Date of Decision 14.1.99

Counsel for the Applicant

Solicitor for Applicant Mr B Miles, MRRC

Counsel for the Respondent Ms J Carrington, Departmental Advocate

Solicitor for the Respondent