Ngu and Minister for Immigration and Multicultural Affairs [1999] AATA 609 (11 August 1999)

Last Updated: 20 August 1999

DECISION AND REASONS FOR DECISION [1999] AATA 609

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1998/270

GENERAL ADMINISTRATIVE DIVISION )

Re THE HUNG NGU

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Deputy President T E Barnett

Date 11 August 1999

Place Perth

Decision The decision under review dated 21 June 1998 that the applicant be deported is affirmed.

(Sgnd)T.E.Barnett

..............................................

Deputy President

CATCHWORDS

MIGRATION Deportation of non citizen resident for less than 10 years - criminal offences - 8 year sentence of imprisonment - consideration of Ministerial Directions No 9 - firing gun into crowd with intent to wound - abhorrent to Australian community - lack of remorse - risk of recidivism

Migration Act 1958 ss 200, 201

Luv v Minister for Immigration and Multicultural Affairs 1998 157 ALR 213

Minister for Immigration and Ethnic Affairs v Daniele 1981 39 ALR 649

REASONS FOR DECISION

11 August 1999 Deputy President T E Barnett

1. The applicant seeks a review of the decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") dated 21 June 1998 to deport him from Australia pursuant to the powers conferred by s.200 and s.201 of the Migration Act 1958 ("the Act").

2. At the hearing the applicant was represented by a friend, Ms Sophie Khan, and the respondent by Mr P Ritter of counsel, instructed by the Australian Government Solicitor. During the hearing, which continued over 8 days, several different official interpreters were employed to translate between the English, Vietnamese and Cantonese languages. The applicant, who could follow simple English, requested that the proceedings be translated into the Cantonese language, and this was done.

3. The following witnesses gave evidence:

The Ngu Hung, Carlo Elio Grossetti, Dao Thai Duong, Tri Trong Vo, Sohpie Khan, John Denis Burden, Ly Le Binh, Minh Chanh Phung, Simon Ross de Vere

4. In addition to the materials filed pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 the following materials were also accepted into evidence:

Exhibit A1 Reference from Ms Shelley Edwards dated 3/7/98.

Exhibit A2 Reference from R T Isbister, undated.

Exhibit A3 Statement of Dao Thai Duong, facsimile dated 5/11/98.

Exhibit A4 Statement of Tri Trong Vo.

Exhibit A5 Statement of John Burden Dated 5/10/98.

Exhibit A6(a) Statement of Mr Tai Van long and Ms Binh Le Ly dated 14/7/98.

Exhibit A6(b) Statement of Ms Le Binh Ly dated 5/10/98.

Exhibit A6(c) Statement of Mr. Tai Van Long and Ms Binh Le Ly dated 5/10/98.

Exhibit A7 Bundle of Medical documents re: Mr. Tai Van Long.

Exhibit A8 Parole Board decision dated 25/9/98.

Exhibit A9 Ministry of Justice report dated 16/7/98 (with annotations).

Exhibit A10 Selection of Fundamental Laws and Regulations of Vietnam.

Exhibit A11 Letter from Sophie Khan on behalf of The Hung Ngu dated 9/10/98 with attachments.

Exhibit A12 Statement of applicant dated 30/11/98 - commencing "to whom it may concern".

Exhibit A13 Letter dated 30/3/99 from applicant.

Exhibit R1 Criminal records of people present at 18 Motram Way on 13/5/94, other than the applicant.

Exhibit R2 Criminal records of people present at 160 Newcastle St on 2/9/94.

Exhibit R3 Criminal record of Trang Phuoc Dat

Exhibit R4 Photograph

Exhibit R5 Criminal records of people at 4/61 Wanneroo Road, Tuart Hill on 6/12/94.

Exhibit R6 Notice of Breach of Residential Tenancy Agreement for 4/61 Wanneroo Road, Tuart Hill.

Exhibit R7 Criminal record of Craig David White, DOB 21/6/73.

Exhibit R8 Police Video and transcript of applicant's interview with police dated 18/4/95.

Exhibit R9 Police interview with Huy Van Le, dated 27/6/95.

Exhibit R10 WA Police Service property receipt details for receipt No. 19950149730 dated 14/1/99.

Exhibit R11 Police History for Huynh Hung Nguyen dated 8/12/98.

Exhibit R12 Prison report dated 11 December 1998 with attachments.

Exhibit R13 Parole officer's report by Tim Harwood dated 4/6/98.

Exhibit R14 Conviction record list for Duong Thai Dao dated 23/3/99.

Exhibit R15 Depositions of Jack Quan Tran, Adam William Woodward and Emily Kathleen Tilby - various dates.

Exhibit R16 Statement of Van Tai Long to policed dated 28/4/95.

Exhibit R17 Statement of Simon Ross de Vere dated 9/3/99.

Exhibit R18 Parole Board Decision dated 24/7/98.

Exhibit R19(a) Criminal record Le Van Huy.

Exhibit R19(b) Criminal record for Trong Gia Vet

Exhibit R19(c) Criminal record for Vu Doc Thuan

Exhibit R20 Copy of Ministerial Policy Guidelines under s.499 re: Criminal Deportation.

Exhibit R21 Transcript of Applicant's Criminal Trial.

5. It is agreed that the applicant arrived in Australia on 10 June 1992 from Vietnam at the age of 18 years. He was admitted as a permanent resident to join his mother who has remarried and is an Australian citizen.

6. On 25 October 1996, the applicant was convicted in the Supreme Court of Western Australia on three counts arising from a shooting incident which occurred on 15 April 1998. There were two convictions for "with intent to maim, disfigure or disable another unlawfully wounding a person" and one conviction for "unlawfully doing grievous bodily harm". He was sentenced to 8 years imprisonment on each count to be served concurrently.

7. There is no contest that these facts empower the Minister to exercise his discretion under s.200 to order that the applicant be deported as he has been convicted of a criminal offence and sentenced to imprisonment of a period of not less than 1 year at a time when he had been a resident in Australia for a period of less than 10 years (s.201).

8. At his trial in October 1996, the applicant admitted to firing shots from a hand gun but denied any intention to cause harm to anyone.

9. At this Tribunal hearing also he admitted to firing two shots, but he denied the intention to cause harm and it was submitted on his behalf that he was wrongly convicted. His representative, Ms Khan, gave evidence that two other persons Hui Van Le, the applicant's co-accused who was acquitted, and her deceased ex defacto Hung Huynh Nguyen (Nguyen) admitted to her that they had fired the shots; not the applicant.

10. In a criminal deportation case such as this the Tribunal "... cannot ignore the conviction or seek to set it at nought" Minister for Immigration and Ethnic Affairs v Daniele 39 ALR 649 at 653. It can and must however take into account evidence about circumstances of the offence, which have bearing on the nature and gravity of the applicant's criminal conduct. Looking at the amended indictment, the transcript of the trial, the jury's verdict and the Judge's comments while sentencing the applicant, the Tribunal finds that it cannot make any finding or determination which is in conflict with the following basic facts, which must have been decided at the trial.

(a) The applicant deliberately fired two shots from a pistol in the direction of a group of young people who were emerging from a house where a high school party was in progress.

(b) At the time he fired the pistol he intended to maim, disfigure or disable someone.

(c) His shots caused grievous bodily harm to one victim and bodily harm to two other people.

11. Most of the participants in the drama of this case are of Vietnamese origin, including the applicant, though he is part Chinese and speaks Mandarin as his first language.

Background

12. On the night of the shooting on 15 April 1995 there had been some trouble between members of two groups of Vietnamese young men during which Nguyen had been hit with a brick. The groups each had a name, "The Monkey Boys" had grouped around a man known as "Monkey" and the other, younger, group were known by some as "The Dragon Boys". The evidence shows that some of the members of the Monkey Boys were involved in criminal activities including housebreaking and dealing in drugs, but there is little evidence suggesting they were organised criminal groups, other than police suspicion.

13. On the night of the shooting two cars drove past the house and then returned and drove past again. At least two shots were fired and three young men Tri Trong Vo, Dai Quang Tran and Duong Than Dao were wounded. The applicant claimed at his trial and again at this Tribunal hearing that he had got out of the first car, a white Celica, carrying a gun and fired one shot when someone grabbed his arm. He says he got back in the car which drove off up a dead end street. It was obliged to return past the house and it did so. The applicant says there were angry people in the street and he fired another shot through the skylight window of the car and they drove off. He indicated that the gun was pointing up in the air at an angle above the crowd.

Respondent's Case

14. The respondent called evidence to show that -

* The applicant had for some time been living and frequenting with, known criminals who were part of an organised gang which carried out carefully planned burglaries, especially on the houses of wealthy Asians. Members of the gang were heavily involved in taking drugs, including heroin, rohipnol and marijuana.

* The applicant was, comparatively, a new comer to this group and had no long criminal record, but he had been found present during police raids on premises at 160 Newcastle Street. Although he did not have a long criminal record he had recently been convicted of possession of stolen goods and of being found in possession of an implement for smoking marijuana.

* The group used to regularly "hang out" together in premises known to the police, where drugs were freely available.

* There were some older people involved in drawing up a "shopping list" of potential victims of crime or "targets". The targets were usually wealthy Asians (who tended to keep valuable moveable items in their houses) and the adults assisted in disposing of the stolen goods.

* The police were gathering intelligence about this group through the Asian Squad, consisting of 2 Australian detectives and Asian liaison officers/interpreters who helped handle the Vietnamese naming system and in maintaining contact with the Asian community. The squad used paid and unpaid informers.

* The applicant's presence had been noticed on several occasions at premises being raided by police and it was suspected he was becoming involved in the "organised" commission of offences against the "targets" on the "shopping list" but, there was no proof yet.

* There was reason to suspect that guns stolen from a Geraldton Gun Shop were in possession of some group members.

* On 15 April 1995 the applicant was involved in the so-called "drive by" shooting as the person who fired a 9mm semi automatic pistol into a crowd of people outside a suburban house. It was related to rivalry or "pay back" on a rival group.

* At his trial in October 1996 the jury convicted the applicant of the shooting and found that it was done deliberately, with intent to cause injury and that three people were wounded, one suffering grievous bodily harm.

* At the trial the applicant told a "pack of lies" which the jury did not believe. The Judge said he could not believe anything the applicant said.

* The crime was extremely serious and the Australian people would not want the applicant to remain here.

* There is a strong likelihood the applicant will commit more crimes if he is allowed to stay because:

* He has no employable skills.

* Poor education.

* Poor knowledge of the English language.

* No protective home environment.

* His associates include many convicted criminals and drug users and some drug dealers.

* He associates with an organised group of Asian criminals, whom he protected after his arrest and at his trial (at the expense of receiving a longer sentence for not cooperating with the police).

* He is still not cooperating and has shown no remorse nor has he accepted responsibility for his crime, because he has still not told the whole truth about where he got the gun, why did they go to the party, how did he aim the gun, what was the involvement of the red car.

* A person he claims is his "special friend" has just been arrested in circumstances strongly indicative of committing burglary. He has been charged with that offence and indicates he will plead guilty. His representative at the hearing, Ms Khan, is a lady whose recent de facto (now deceased) was a convicted criminal, who is strongly suspected of having been a key participant in the group's criminal activities (possibly even with involvement in the deportable offence). Her car has been used in the commission of offences and police suspect she herself had knowledge and possible involvement after the fact of those offences.

Applicant's Case

15. The applicant has only a low level understanding of the English language and has relied substantially on , Ms Sophie Khan, to prepare and present his case. Ms Khan, unexpectedly, gave evidence herself in the closing stages of the hearing. She offered new evidence which pointed to Nguyen as the person who fired the shots and she described the applicant as an innocent young man who had decided to take the blame in order to protect his friends. She was vigorously cross-examined on her evidence to impugn her own credibility and that of the applicant.

16. As there are now two stories put to the Tribunal on behalf of the applicant, his own and that of Ms Khan, the Tribunal will first examine the story of the applicant himself.

17. The applicant said in evidence that he came to Australia in June 1992 at the age of 18 years and lived with his mother and stepfather for about a year. During this time he attended school, but left because he could not speak English or even understand the English written alphabet. He then did part-time voluntary work on the farm of Lam Ai Quoc at Wanneroo and helped Nguyen Van Thoa, a backyard mechanic sometimes. The relationship with his stepfather deteriorated, partly because the applicant was drinking and playing around with his friends, which annoyed the stepfather and partly because the stepfather drank heavily himself and was irritable and hard to live with. The applicant then left home and stayed with various friends for awhile. When he started receiving newstart allowance he rented a house in Motram Way, Morely. Three new acquaintances moved in with him (Hang Tuan Quy, Hunyh Quang Tien and Phon Mink Hieu), then others moved in also. The house was raided by police looking for stolen goods and the applicant, as the occupier, was charged and convicted of possessing a stolen video recorder. He then moved out of the house. The others moved in with Sophie Khan and her boyfriend Hung Huynh Nguyen at Girrawheen, but the applicant refused to join them because, he says, he now realised they were involved in criminal activities. (Ms Khan later confirmed those criminal activities in her own evidence about what she witnessed in her house during the visit by that group). After a while the applicant rented a new flat in another suburb.

18. The applicant admitted to knowing Nguyen and said that Nguyen had visited him sometimes at his house.

19. The applicant has given different accounts about the shooting incident. At his criminal trial he said that he had been in possession of the gun for about a year before the incident (this is almost certainly untrue). He told the police at his interview that he had thrown the gun away after the shooting and he then accompanied police trying to find and retrieve it. He told this Tribunal that he had never seen the gun until he got out of the car to make some inquiries about the party. He said he was talking to Nguyen Dunh Tien, a former school friend. Some people came towards him from the house in a threatening manner so he ran back to the car. At this stage, he says Hui Van Le handed him the gun. He told the Tribunal that he had no experience of guns and when Tien held his arm the gun went off. He said he ran and got back inside the car in the front passenger seat. They drove off to a dead end street and had to return past the house. There were threatening people on the road so he fired the gun again, pointing upwards through the sky roof. He did not think that shot could have hit anyone because of the upwards pointing angle of the barrel. He then handed the gun to Le in the back seat. He says he does not know what subsequently became of the gun.

20. In cross-examination the applicant admitted lying to the police and to the criminal court jury on key aspects of the shooting incident. He maintains that his motive for lying was to protect his friends as he was already in trouble.

21. Since his imprisonment the applicant's knowledge of spoken English has improved, but he is still not fluent. He can converse in simple "broken" English only. He can read simple English sentences very slowly only. He has completed a course in anger management and in drug/alcohol abuse. He now has some capability as a cook's assistant cooking the type of meals served in prison. He also has had experience sewing garments by machine in the prison tailor shop.

22. In the closing stages of this long hearing, Ms Sophie Khan gave evidence about her own involvement in the events prior and subsequent to the shooting. She said that she had been in a long-standing relationship with Nguyen who was the father of two of her three children. She described how she came to realise he was involved in drugs and other criminal activities. She also described how a group of Vietnamese young men had stayed in her house at Mottley Way. She described their involvement in drugs and burglaries and their possession of firearms. She said that she knew of the applicant as a quiet young man who was not a regular, confirmed member of that group. When her own house was over-run by the others she had occasionally visited the applicant's new house to enjoy the more peaceful atmosphere.

23. She described how she witnessed Nguyen's anger after he had been hit with a brick on the night of the shooting and how he called together a group to retaliate against the group which had assaulted him. She described his fear and agitation after the shooting had occurred.

24. After the applicant was convicted she felt sorry for him and started visiting him in prison, feeling it was unjust that he was paying the price for trouble caused by others. She described how she became emotionally involved with the applicant for a while, as she began to help him with the appeal against deportation.

25. Ms Khan then told the Tribunal that Hui Van Le had confessed to her that he , not the applicant, had fired the shot outside the house on the night of the party, despite the fact that he had been acquitted of the same charges for which the applicant was convicted. Ms Khan said she had telephoned this information to a policeman called Steve at the Asian Squad. Then Ms Khan said, for the very first time, that her defacto Nguyen had confessed to her that it was himself who fired the shots which wounded the victims. Ms Khan said she had not been prepared to disclose this during Nguyen's lifetime because of fears of him. The reasons why she had not told the story in the years since Nguyen's suicide were not made very clear. She said that she had not even told the applicant about this until she gave the evidence at the Tribunal.

26. In his submissions to the Tribunal on behalf of the respondent, Mr. Ritter referred briefly to the preconditions for deportation specified in s.200 and s.201, then addressed in the exercise of the discretion in the light of the most recent Ministerial Direction under s.499, Direction No. 9 of 21 December 1998. He submitted that the Direction imposed mandatory requirements upon the Tribunal to consider specified matters. He emphasised that one primary consideration the Tribunal must take into account is the expectations of the Australian community that it will be protected and not put at risk, and that non citizens who are convicted of crimes which are abhorrent to the Australian community will be removed from the Australian community. He said that the crime of firing two shots into a crowd of young people with the intention to harm someone in retaliation for previous trouble was abhorrent to the Australian community. It was also such a serious crime, with the likelihood of such serious consequences, that even a minor risk of recidivism would be unacceptable. He pointed to the applicant's excessive use of marijuana and alcohol, his consorting with known criminals, his two previous convictions and the fact that it was, on the judge's findings, a premeditated offence carried out for revenge. Mr. Ritter also submitted that this was a crime against children as the people at the party were mainly under aged high school students.

27. Mr. Ritter also submitted that this was a case where deportation could act as an effective deterrent against others committing similar offences. He said that this was not one of those spur of the moment offences, which are difficult to deter, but a premeditated revenge shooting and that both the heavy sentence and the subsequent deportation would act as a powerful and necessary deterrent.

28. As to whether the applicant has been successfully rehabilitated, Mr. Ritter submitted that although his prison record is relatively good, the applicant is still not showing true remorse for his crime, but is still trying to exculpate himself and, through Ms Khan, is attempting to pass the blame to others, who are now deceased. He is still refusing to satisfactorily explain where the gun came from or what happened to it. His "best friend" is still actively involved in crime and is currently pleading guilty to a burglary charge.

29. Mr. Ritter submitted that the Tribunal should accept the finding of the Trial Judge on various matters in preference to the version proffered by the applicant. The Tribunal should accept that the applicant got out of the car and simply fired the gun without having been threatened by an armed crowd or having his arm held. When the car returned, it slowed down and the applicant took aim at the crowd and fired two shots in quick succession. Mr. Ritter referred to Luv v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 213 per Wynburg J as authority that the Tribunal was bound to accept these essential facts on which the convictions were based.

30. Mr. Ritter cautioned the Tribunal against accepting the applicant's story that he had tried to disassociate himself from gang members prior to the offence. He pointed out that that the three friends with whom he shared the Morley Street house are all convicted criminals and that after he left that house, allegedly to live separately, he was found by police on several occasions at 160 Newcastle Street, which was described as a "shooting gallery" for heroin users and a hiding place for stolen goods.

31. On the question of hardship to the applicant if he is deported, Mr. Ritter submitted that it was not a situation where the hardship would be very great. The applicant lived in Vietnam until aged 18 years, and has a grandmother, aunts, uncles and cousins living there now. He has no wife or children in Australia. He has work skills which may assist him to find employment in Vietnam where he speaks the language, as well as Cantonese, and is familiar with the culture. Mr. Ritter conceded that there would be some hardship for the applicant's mother if he is deported, but pointed out that she has done fairly well in the six years since 1993 when he left home and was subsequently incarcerated.

32. In her closing submissions to the Tribunal Ms Khan made many points:

(a) There is no evidence that the applicant was the leader of a Vietnamese gang. If there was such a gang, which she denies, he was an inexperienced associate of it, rather than an active member.

(b) Despite previous allegations to the contrary, it was now agreed that the applicant's behaviour in prison has been good. Prison staff spoke on his behalf (at their own instigation, which is unusual) describing him as gentle, well behaved, co-operative and industrious and, importantly, not involved in drugs, despite their availability.

(d) The interview in prison between the applicant and Mr. Graffin from the department was interpreted by Nguyen, who was himself involved in the offence and had a vested interest to protect. Things the applicant said in his own favour were not translated by Nguyen, who also stopped him from saying certain things.

33. She also made submissions on the application of the Ministerial General Direction No. 9.

(a) Para 6(I) primary considerations - expectations of the Australian community. Ms Khan referred to views of witnesses, who make up a wide cross-section of the Australian community who favour allowing the applicant to stay: Detective Grossetti was positive about the applicant; the victims Duong Thi Dao and Tri Trong Vo described the applicant as a friend, hold no grudges and wish to help him; the family want him to be given another chance; prison officers, Shelley and Edwards and Mr R J Isbister spoke of his good work ethic and good conduct. The prison superintendent recommended parole and gave evidence supporting the applicant; Mr Burden, company director, has made a job offer to help him to be allowed to stay and Ms Khan herself is actively supporting the application to set aside the deportation order. She also said that the respondent had offered no evidence to support the view that the Australian community, if properly informed about the applicant's crime and his character, would expect him to be deported.

(b) Para. 7: "The degree of hardship which may reasonably expected to be suffered by the potential deportee".

To this Ms Khan says the applicant does not know the whereabouts of his family members in Vietnam, and has no money and no assets. In Vietnam the applicant will have no support from a social security or parole system. He will undoubtedly suffer hardship if deported.

(c) "Protection of the Australian community ..."

Ms Khan points out that the applicant has completed a substance abuse course and an anger management course in prison, was qualified and approved for minimum security and for parole (except for fact of deportation proceedings) and has favourable reports from the prison authorities.

(d) "Expectation that non citizens who commit crimes which are abhorrent to the Australian community should be deported."

Ms Khan points to lack of evidence on this point. As to the nature of the crime she says the evidence indicates that any intent must have been formed in a split second owing to the urgency of the circumstances in which he was being approached by an angry crowd bearing weapons. She says, that it was for this reason that the trial judge directed that the indictment be amended to specify that the intent should be to cause unlawful wounding rather than grievous bodily harm.

Ms Khan quoted passages from the Trial Judge's sentencing comments which, she says, show that the judge accepted the possibility that the applicant got out of the car unarmed and then ran back to the car when approached by the armed and hostile crowd, "whereupon he came into possession of the gun". Ms Khan submitted that this allowed the Tribunal to accept the applicant's evidence given to it that there was no planned intention to harm anyone and it all happened very suddenly, in the face of a hostile crowd. This reduces the gravity of the applicant's conduct substantially.

(e) "Cooperating with the police".

Ms Khan submits that the evidence shows he was most helpful about admitting his own guilt. The only failure to cooperate was his reluctance to inform on his "friends".

(f) "Severity of sentence as reflecting of the seriousness of the crime"

Ms Khan points to the judge's comments indicating that he interpreted the applicant's lies in court and failure to cooperate as signs of lack of remorse and this added to the length of the sentence. She points out that the reason for this lack of cooperation was not lack of remorse, but a desire to protect his friends.

(g) "Risk of recidivism"

Ms Khan looked at the factors listed in the Direction and pointed out that the applicant does not have "several previous convictions". She also points out that there has been extensive rehabilitation in the form of courses successfully completed in prison, his eligibility for minimum security status, his progress with the English language and the work skills and good work ethic he has developed. He has learned to cook and sew and overlock and has made clothes and prepared meals for all prisoners at Casuarina Prison.

Ms Khan submitted that there is no evidence of risk of re-offending before the Tribunal except for a list of the applicant's so called associates and a list of their convictions. She points out that many on the list are unknown to the applicant, few were associates, and two of those listed are already dead and therefore are unlikely to lead him astray. The "convictions" of those listed who may be relevant have not been formally proved and cannot be effectively challenged by the applicant.

(h) "Hardship to Australian citizens and residents".

Ms Khan submitted that the applicant's aged and ill mother will suffer extreme emotional hardship because of his loss and will also suffer materially because he is her only son in Australia and has a strong cultural obligation to support her, now that her elderly husband is becoming too ill to do so.

34. Ms Khan, finally, asked the Tribunal to accept that with a job offer, a strong work ethic, increased maturity, improved English language skills and ongoing support through the Parole services, there was a good chance that the applicant would become a good law abiding Australian citizen.

Findings

35. The Tribunal finds that the applicant is a non-citizen who was convicted of the deportable offences committed when he had been resident in Australia for less than ten years, and was sentenced to concurrent sentences of imprisonment totalling 8 years. He is therefore liable to be deported under s.200 of the Act.

36. Whether or not to deport is at the discretion of the Minister and now at the discretion of this Tribunal standing in the shoes of the Minister. In exercising this discretion the Tribunal must take into account the matters set out in Ministerial Direction No. 9 of 21 December 1998.

37. The Tribunal accepts the following essential facts upon which the convictions were based and incorporates them as findings of fact in this decision:

(a) The applicant attended at the scene of the shooting outside the house where the party was in progress knowing that there was liable to be trouble because his companions were seeking revenge for a past incident.

(b) He got out of the white car and walked towards the crowd and fired a shot into the air. He returned to the car which drove off. On the return trip the car slowed down and the applicant fired two more shots in quick succession into the crowd, wounding three people, one of them seriously.

(c) At the time he fired the last two shots the applicant intended to unlawfully wound someone.

In addition, on the basis of all the materials and evidence before it the Tribunal makes these further findings of fact:

(d) Prior to the shooting the applicant had been living with and consorting with a group of young Vietnamese men who were actively involved in the consumption of illegal drugs and alcohol and were regularly breaking into houses and stealing on an organised basis. This was a fairly new development in the applicant's life since leaving home. He had been convicted of possession of stolen goods and possession of a smoking implement.

(e) In taking the active role in the shooting, the applicant was seeking approval from his criminal associates, who he later proceeded to protect by withholding vital details relating to the gun and by perjuring himself at his trial.

(f) The applicant has still not made full disclosure of the events relating to the offences and has been party to attempts to put the blame onto Hui Van Le and Nguyen. The applicant still does not really show remorse for his actions in shooting into the crowd.

(g) The circumstances of the shooting were extremely dangerous and as the trial judge said, it is a miracle no one was killed.

(h) The applicant has been of good behaviour in prison and has been a cooperative worker. He has completed courses in alcohol abuse and anger management and was considered by prison authorities as suitable for minimum security and release on parole.

(i) He has only a basic level of simple spoken English and even less proficiency in written English. He has had very limited primary education in Vietnam.

(j) He has had only very limited experience of full-time employment for a few months in restaurants and some ad hoc work for a short period in a market garden and for a backyard mechanic.

(k) He has some employment prospects in that Mr. Burden, a business man, is prepared to consider him, after interview, for unskilled work on one of his projects as a trial.

(l) The applicant still maintains that he did not fire any shots at the crowd, but fired into the air. By inference he is saying that someone else wounded the victims. This makes a finding of genuine remorse not open to the Tribunal, which is obliged to accept that the applicant fired with intent to wound.

(m) The applicant will suffer hardship if deported, but it will be alleviated by the fact that he will be able to contact his grandmother in Vietnam, as his mother has the telephone number, and to make contact with other family members living there. There is no substance to his fears that he may suffer prosecution in Vietnam.

(n) There will be hardship for his mother if he is deported, but she has survived 6 years of his absence already.

(o) Owing to the applicant's history of association with criminals, his demonstrated fondness for alcohol and marijuana, and his lack of genuine remorse there is a risk that he will re-offend in the future.

(p) The crime he committed was extremely serious and is abhorrent to the Australian community which has a right to be protected from such violence and to not be put at risk.

38. In all the circumstances the Tribunal finds that the correct and preferable decision is that the applicant should be deported.

DECISION

The decision under review dated 21 June 1998 that the applicant be deported is affirmed.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President T E Barnett

Signed: Christine O'Hara .....................................................................................

Associate

Date/s of Hearing 17, 18, 21 December 1998, 22, 23,24,25 and 30 March 1999

Date of Decision 11 August 1999

Counsel for the Applicant

Solicitor for Applicant

Counsel for the Respondent M. Ritter

Solicitor for the Respondent J.Kapel