Tham and Minister for Immigration and Citizenship [2011] AATA 629 (7 September 2011)

Last Updated: 7 September 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 629

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/2541

GENERAL ADMINISTRATIVE DIVISION		)
	Re		THO DUC THAM

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Ms G Ettinger, Senior Member

Date 7 September 2011

Place Sydney

Decision

The Tribunal affirms the decision under review

.................[sgd]..........................
Ms G Ettinger
Senior Member

CATCHWORDS

IMMIGRATION - Visa cancellation - character test - substantial criminal record - whether Tribunal should exercise discretion to grant Applicant's visa pursuant to s 501 of the Migration Act 1958 - application of Direction 41 issued under s499(1) of the Migration Act 1958 - primary considerations - protection of the Australian community - risk of recidivism - length of time that a person has been ordinarily resident in Australia - interest of children - other considerations - decision under review affirmed

Migration Act 1958: s 501

Direction [no. 41] - Visa Refusal and Cancellation under section 501

Shi v Migration Agents Registration Authority [2007] FCAFC 59; (2007) 158 FCR 525

Byahuranga v Denmark, Communication No.1222/2003, 9 December 2004

Zi Pei Shi and Minister for Immigration and Citizenship [2011] AATA 83; (2011) 120 ALD 170

Rosson v Minister for Immigration and Citizenship [2011] FCA 194

Minister for Immigration v Ali [2000] FCA 1385; (2000) 106 FCR 313

Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56

REASONS FOR DECISION

7 September 2011

Ms G Ettinger, Senior Member

SUMMARY

1. Mr Tho Duc Tham has applied to this Tribunal for review of the decision of a delegate of the Minister for Immigration and Citizenship dated 21 June 2011 to cancel his Class BS Subclass 801 Spouse Visa. The visa was cancelled because Mr Tham does not pass the character test as a result of his substantial criminal record, pursuant to section 501(6) of the Migration Act 1958, (the Act). In considering his application, the Tribunal is mindful that although Mr Tham does not pass the character test, the Tribunal may nevertheless exercise a discretion applying Direction No 41 on Visa Refusal and Cancellation under section 501 of the Act (Direction 41), because ultimately it must make the correct or preferable decision.
2. Mr Tham who was represented by MY.T. Nguyen Solicitors, and Mr N Poynder of counsel, submitted that the discretion to grant him a visa should be exercised in his favour, because he is genuinely remorseful in regard to the problems he has caused to his wife, and to the Australian community. He says he has realised his mistakes and changed following his incarceration and the courses he has undertaken in that time. Mr Tham says that he now has a full understanding of his gambling habit, which he rejects. He wants to be given a second chance. Mr Tham says that his links are with his wife and family in Australia, and emphasised the hardship he and his family would suffer if he were to be deported.
3. Mr D McLaren who represented the Minister for Immigration and Citizenship, the Respondent in these proceedings, acknowledged that Mr Tham and his family would suffer hardship if Mr Tham were to be deported. He submitted the Minister’s position, which was that the primary considerations pursuant to Direction 41 weigh significantly against the Applicant, and in favour of cancellation of his visa, and that accordingly, the decision under review should be affirmed.
4. It is not in dispute, and I am satisfied from the evidence before me that Mr Tham does not pass the character test pursuant to the legislation. I have considered the discretion in Direction 41, the primary considerations and also the other considerations, and I am satisfied that the correct or preferable decision is that the Minister’s decision to cancel Mr Tham’s visa should be affirmed. My reasons follow.

BACKGROUND

5. Mr Tham who is a Canadian citizen, was born in Vietnam in 1959, and came to Australia in 2005. He had previously been married in Canada, and has three adult children there whom he says he rarely sees. Since arriving in Australia, he has returned to Canada on eight occasions, and says he has only seen his children at family functions such as the funerals of his parents. He met his present wife, of Vietnamese origin, and an Australian citizen, when they were reunited in Canada after having known each other in Vietnam some 25 years previously. Mr Tham and Ms Thi Thai Le married in Canada in 2003. Mr Tham then came to Australia. He was granted a Subclass 820 Spouse Visa on 19 October 2006 and a Subclass 801 Spouse Visa on 14 October 2008.
6. Mr Tham has a criminal record in Canada. Firstly he has a conviction for theft under $1,000 in 1990. Then in 2004, Mr Tham, who was represented by a Vietnamese lawyer, pleaded guilty to possession of a Schedule II substance for the purpose of trafficking sec 5(2) CDS Act for which he received 90 Days & Probation 1 yr & Mandatory Prohibition Order Sec 109 CC.
7. Mr Tham appealed, whereupon the Court of Appeal of Alberta, after stating that: The police caught the appellant with 40 marihuana plants in his van, and charged him with possession of cannabis under 3 kg. for the purpose of trafficking, varied the sentence as follows: $5,000 I-D 95 days & Probation 1 Yr & Mandatory Prohibition Order Sec 109 CC.
8. In 2008, only some three years after arriving in Australia, Mr Tham again offended, and again in connection with cannabis. There were two charges, and Mr Tham was convicted on both. The first was that on 9 May 2008, at Bradbury, Mr Tham knowingly took part in the cultivation of a number of prohibited plants by enhanced indoor means, namely 145 plants which was not less than the commercial quantity applicable to that prohibited plant.
9. The second charge was that on 12 May 2008 at Blair Athol, Mr Tham knowingly took part in the cultivation of a number of prohibited plants by enhanced indoor means, namely 845 plants which was not less than a large commercial quantity applicable to that prohibited plant. A co-offender, Mr Hung, was involved and also convicted.
10. Mr Tham has served a prison sentence, and has no recorded offences while incarcerated.
11. I am mindful that on completion of his sentence, and on release from prison, Mr Tham was placed in immigration detention where he has been since July 2011.

LEGISLATIVE CONTEXT

12. The relevant legislation in this matter is the Migration Act 1958 (the Act), and Direction No 41.
13. Section 501(1) states that the Minister may cancel a visa to a person if the person does not satisfy the Minister that he or she passes the character test. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. Substantial criminal record is defined in section 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more. There is no dispute, and I am satisfied that Mr Tham does not pass the character test.
14. Direction 41 which is made pursuant to section 499 of the Act, is applied if exercising the discretion where a person has been held to fail the character test in section 501 of the Act. In relation to the character test, events leading up to the date of the decision of the Tribunal may be taken into account (Shi v Migration Agents Registration Authority [2007] FCAFC 59; (2007) 158 FCR 525).
15. I am mindful that the Objectives of Direction 41 as set out in paragraph 5, are, pursuant to paragraph 5.1(1) to regulate, in the national interest, the coming into, and presence in Australia of non-citizens. Paragraph 5.1(2) states that:

In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

16. Direction 41 contains a number of primary considerations and other considerations to which the Minister, and therefore this Tribunal, standing in his shoes, must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
17. The primary considerations in Direction 41 are set out in paragraph 10(1):

...
10. The primary considerations

1. In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
...

18. There are also a number of other considerations that, where relevant, must be taken into account, but, generally, in accordance with Direction 41, paragraph 11(1), they should be given less weight than the primary considerations. Both the primary considerations and other considerations are discussed in the paragraphs below.

PRIMARY CONSIDERATIONS

19. The relevant primary considerations in Mr Tham’s case are the protection of the Australian community, assessed by considering the seriousness and nature of his relevant conduct, and the risk that that conduct may be repeated. Also relevant is that Mr Tham was already 45 years old when he first arrived, and began living in Australia in 2005, and the length of time he had been ordinarily resident in Australia prior to engaging in criminal activity. It is significant that only approximately three years after his arrival from Canada, Mr Tham was again convicted of offences in connection with marijuana, an illegal substance.
20. I have addressed the other primary considerations such as the best interests of any relevant child or children, and any international obligations in the paragraphs which follow. They are not of particular significance in this case.

Protection of the Australian Community

21. The primary consideration, protection of the Australian community has been broken down into consideration of the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.

Seriousness and nature of the conduct

22. With regard to the seriousness and nature of Mr Tham’s conduct in Australia, I note that a non-exhaustive list of offences and conduct are given in paragraph 10.1.1(2) of Direction 41. I have already mentioned above that Mr Tham was charged with, and pleaded guilty to two charges under section 23(2)(a) of the Drug Misuse and Trafficking Act 1985.
23. His Honour Judge Bozic in sentencing Mr Tham on 6 August 2010, found that in relation to the Bradbury premises, Mr Tham’s role was to visit the property and mow the lawns, help to move items used in the cultivation from a van to the garage and then into the house and on one occasion he brought dirt and put it in pots, took lights used in the cultivation into the house and put them upstairs.
24. In relation to the property at Blair Athol, his Honour held that Mr Tham’s role was that he met Mr Hung the co-offender a couple of months before he was apprehended by police. He helped him on one occasion move items used in the cultivation from a van into the garage of the house, moving equipment used in the cultivation namely a light set, light bulbs, a transformer, a water pump, pots, dirt and some chemicals.
25. His Honour also held that Mr Tham’s involvement in each offence came about because of his gambling problems and that his reward was to be taken to Star City Casino and given meals and money for gambling. While not mitigating, this explains how each offence came to be committed.
26. His Honour also noted Mr Tham expressed remorse, realised he has a gambling problem, and was willing to get treatment for it. Bozic J also held that Mr Tham has good prospects of rehabilitation and is not likely to reoffend in the future. His Honour held that offences of this type, involving the cultivation of prohibited plants by enhanced means is objectively very serious. However his Honour also held that: Given the limited role played by the offender, I find that the offence falls below the middle range of objective seriousness and towards the lower end of the range of objective seriousness. His Honour noted that Mr Tham pleaded guilty a week before the trial was to commence, thus saving court time, and accordingly took that into account in sentencing.
27. His Honour backdated the sentence to 2 January 2009 to take into account the pre-sentence custody served, and sentenced Mr Tham to imprisonment for four years and four months, with an effective non-parole period of two years and six months. The Judge also stated that he was satisfied that Mr Tham would benefit from an extended period of supervision to assist his rehabilitation, and to assist him in relation to his depression and anxiety, and to assist him in remaining drug free. He therefore found special circumstances in accordance with section 44(2) of the Crimes (Sentencing Procedure) Act 1999.
28. In assessing the protection of the Australian community per Direction 41, I have considered the seriousness and nature of the relevant conduct by Mr Tham as discussed in the paragraphs above. There is no doubt that his offences have been serious, even though Judge Bozic, in his sentencing remarks held that Mr Tham’s role in the commission of the offences was substantially less than that of the co-offender. The custodial sentence his Honour imposed reflects that.
29. I must also take into account the offences for which Mr Tham was convicted in Canada. In 1990 Mr Tham was convicted and fined for a theft of under $1,000. Then in 2004 he was convicted of an offence also involving cannabis. Before me, Mr Tham strenuously denied he knew what the load in the van he had provided to his client contained, and maintained that the client had loaded the van, and he was just driving it to a dump. A priori this Tribunal cannot go behind a criminal conviction.
30. However, Mr Poynder made a number of submissions about the relevance of Mr Tham’s convictions in Canada. He submitted that the 1990 theft was minor, occurred more than 20 years ago, and was therefore not relevant. He acknowledged that the 2004 conviction was relevant, submitted however, that it was based on a plea bargain, and that Mr Tham maintains his innocence, as I note he did before this Tribunal. Mr Poynder referred to Minister for Immigration v Ali [2000] FCA 1385; (2000) 106 FCR 313 where he noted that Branson J had found no error in that the Tribunal had taken into account evidence going behind two convictions where there had been a plea of guilty.
31. Mr McLaren submitted on behalf of the Minister that the onus was not on the Minister to prove a criminal offence, and that the Court of Appeal in Canada had not overturned the conviction on appeal. He noted that Branson J stated as follows at [43]:

A conviction and sentence ... as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted.

32. I am mindful of the submissions of both parties, and of the points made by Branson J in Ali. Her Honour enumerates various points at [41] to [45], commencing with: First, it seems to me to be clear beyond argument that the administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based (Spackman, Daniele, Gungor and SRT).
33. At [43], her Honour stated:

...the Act should be construed as requiring a decision-maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted ... This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested hearing.

34. Branson J also emphasised that the Tribunal in considering the risk of recidivism in Ali properly gave consideration to the person’s previous convictions. I must similarly do so.
35. I note that the Court of Appeal of Alberta stated in reference to the joint submission made by the parties at the hearing at first instance: We do not say what the sentencing judge should have done had there been no joint submission. But in light of it, we allow the appeal and substitute a fine of $5000 instead of the imprisonment. We leave the probation order and the firearms prohibition in place. I am satisfied that I should give weight to the fact that at whatever level, Mr Tham was convicted of an offence relating to cannabis in Canada in 2004, followed by two further offences a mere three years later in Australia in 2008. I am mindful of Bozic J’s comments, noting however, that the convictions in Australia are for serious offences.
36. I note also that Mr Tham made a Statutory Declaration to DIMIA via his lawyers in 2006, with regard to good character and in connection with his application for a visa only two years previous to the offences. He may not then have formally been warned about the possibility of a visa cancellation, but was certainly made aware of the relevance of good character.
37. I noted also that Mr Tham has a gambling habit, developed he says, only after coming to Australia. He says he was lonely and had no friends apart from his wife. He said that she controlled the money so that he had no money to gamble. He says he met Mr Hung who owned a furniture shop in approximately 2005/6, and did jobs for him such as cutting grass, moving furniture around, and cleaning up his garage every two weeks or so. He said that Mr Hung paid him, perhaps $50 or $100 at a time, and took him for beers and to the casino, and they had fun. Although Mr
    Tham did not admit that before me, he told a psychologist who interviewed him that he owed money to Mr Hung, and that that caused more problem gambling. Mr Tham says that he does not want to gamble any more, and that he is prepared to enter into programs to assist. At the time of the hearing he had not looked into what programs there were, and I have no indication how successful all that might be.
38. A prior conviction in 2004 for a cannabis related offence, and serious convictions with accompanying prison sentences such as those Mr Tham received in 2008, accompanied by a gambling habit weigh against him remaining in Australia.

Risk of the conduct being repeated

39. I next moved to consider the risk of the conduct being repeated. That is always a primary consideration in these cases, but particularly so in a case such as Mr Tham’s where he had already been convicted in connection with a cannabis offence in Canada just three years prior to committing a further offence involving cannabis in Australia.
40. I note that paragraph 10.1.2 of Direction 41 requires that in assessing the risk that the conduct may be repeated, consideration be given to Mr Tham’s previous general conduct and total criminal history, and, in particular, to any recent history of convictions, evidence of rehabilitation, and evidence as to whether he has breached any judicial orders.
41. As already stated, Mr Tham’s history of criminal convictions commenced in Canada in 1990 where he was first convicted for a theft of under $1,000. This was followed by a conviction in 2004, as noted above, for possession of a Schedule II substance for the purpose of trafficking. Notwithstanding Mr Tham was represented by a Vietnamese lawyer, and notwithstanding the documentation indicates he pleaded guilty to the charge, Mr Tham maintained strenuously before me that he was innocent. He says he understood that his lawyer struck a deal with the police whereby he would be fined $5,000, but have no criminal record. He said that he was pulled over by the police because he was not licensed, (the implication being, to dump rubbish).
42. I noted that in response to the letter of DIMIA dated 3 March 2006 regarding his character, and in connection with his application for a visa, Mr Tham made a Statutory Declaration dated 14 March 2006 where he deposed at paragraph 9: When I appear in Court [in Canada] I had told the magistrate that I was innocent and he gave me a 1 year good behaviour bond. I was not happy with the outcome and appealed this sentence.
43. Mr Tham told me that in Canada, he did what he called a removalist job in addition to his day job in order to earn extra money. He told me that as part of a job he had provided a van to persons who engaged him, and who loaded the van the day before he collected it. Mr Tham said that he drove the van away, (it was not clear from the evidence whether it was to dump the load), and was stopped by police. He said that he did not know with what cargo his van had been loaded. The load turned out to be marijuana plants or waste from production or harvest of such plants.
44. In considering the risk of Mr Tham re-offending, I am mindful of Judge Bozic’s remarks, being that Mr Tham has good prospects of rehabilitation and is not likely to reoffend in the future. I noted also that Judge Bozic found special circumstances, and imposed a longer than usual parole in order that Mr Tham might benefit from further supervision through parole.
45. Ms M Tweedie, Mr Tham’s parole and probation officer from January to 1 July 2011, gave oral evidence before the Tribunal. Her report dated 21 March 2011 was at G34/147. In her report she stated that:

Mr Tham has attracted excellent work and behaviour reports throughout his incarceration.... Mr Tham has been consistently and gainfully employed throughout his period of incarceration. ... Mr Tham appears to have positive support from his family and his prospects for rehabilitation appear to be positive at this time.

46. In her oral evidence Ms Tweedie commented on the ‘Additional Conditions’ of the Parole Order (Exhibit A6) which related to seeking assistance with, and refraining from gambling. She also detailed the extent of supervision parole would provide Mr Tham.
47. I have also noted below the opinions of the psychologists, Mr Nguyen Van Son, Ms R Miller and Ms K Wakely who assessed Mr Tham and are supportive of him.
48. Mr Nguyen Van Son, a psychologist whose reported dated 20 July 2011 was Exhibit A7 before the Tribunal, gave oral evidence by telephone. In his report he stated that Mr Tham, aged 21, escaped Vietnam with six members of his family by boat for Hong Kong in 1980, and was then resettled in Canada. He also gave an account of Mr Tham marrying a Vietnamese woman in Canada a year after arriving there, his divorce, and his second and current marriage to Ms Thi Thai Le. Mr Nguyen noted that Mr Tham admitted his offences, and has expressed remorse and regret, and also noted that Mr Tham attributed his commission of offences to his compulsive gambling. Mr Nguyen also noted that Mr Tham had undertaken courses in prison, and that he was willing to enrol in further courses in order to rid himself of the gambling addiction. He also stated that the skills Mr Tham acquired while in prison could be put to good use in employment if he were to be released.
49. Mr Nguyen also noted that Mr Tham, a devout Buddhist with strong religious belief and family attachments, and his family, would suffer greatly if he were to be deported. Mr Nguyen stated that he agreed with the assessments of others such as Judge Bozic and the parole officer that Mr Tham would not reoffend. Mr Nguyen noted that Mr Tham had developed certain social phobias such as loss of confidence through the isolation of being incarcerated, and was vulnerable; he would need time to re-establish.
50. Ms R Miller a psychologist produced a report dated 26 July 2011. Ms Miller also gave oral evidence by telephone. She is Mrs Ti Thai Le’s treating psychologist, and has seen her nine times in the period 24 March to 26 July 2011. Ms Miller described Mrs Le’s life, this being her third marriage, to her childhood sweetheart, Mr Tham. She also described Mrs Le’s symptoms, and diagnosed her with major depressive disorder, although I noted that Mrs Le has suffered the disorder for a long time. Ms Miller opined that Mr Tham has provided, and would continue to provide his wife with emotional support, and assist with the family if he were permitted to stay in Australia.
51. Ms K Wakely, a forensic psychologist, produced a report dated 26 May 2010 at the request of Legal Aid prior to the sentencing of Mr Tham on 6 August 2010 (Exhibit A5). She reported on Mr Tham’s early life in Vietnam, his parents’ decision to escape in 1980 when he was 21 years old, and the 12 months the family spent in Hong Kong before entering Canada as refugees.
52. Some of Ms Wakely’s summary of the facts surrounding the family are not entirely in accord with other evidence before me, but I am not overly concerned with that. I note however in particular her comment regarding Mr Tham’s gambling habit, which is relevant. Whilst the evidence before me is that Mr Tham worked 12 hours a day at the bakery, and for Mr Hung approximately every two weeks, and was rewarded for that, Ms Wakely has recorded that Mr Tham first said that he sometimes gambled, whilst when further questioned he admitted that prior to his incarceration he was gambling on a daily basis and spending between one and two hundred dollars per day. He stated that this is because he had ‘nothing to do’. At the Tribunal Mr Tham played down his gambling, and did not mention that he was in debt to Mr Hung as it seems he admitted to Ms Wakely. I am satisfied that it is likely he gambled more than he admitted to the Tribunal. However I acknowledge that Mr Tham said he was prepared to deal with his gambling habit, and would attend the appropriate treatment for that. I noted that he had not made inquiries about what that might be at the time of this hearing.
53. I noted that pursuant to paragraph 10.1.2.(2)(b) of Direction 41, evidence of the extent of rehabilitation may be taken into account. The extent of Mr Tham’s rehabilitation is not clear as he has done only a small number of courses in prison, and his stated intention to no longer gamble has not been tested.
54. I am mindful that Mr Tham has not breached any judicial orders or any prison rules, (paragraph 10.1.2(2)(c)), and noted Ms Tweedie’s comments that Mr Tham has attracted excellent work and behaviour reports throughout his incarceration, and that he has been consistently and gainfully employed throughout the period.
55. As already stated, Mr Tham was not warned directly that his visa could be cancelled. However, I am mindful that Mr Tham’s attention was drawn to the issue of good character. After he applied for permanent residence on 17 March 2005, an officer of DIMIA wrote to him on 3 March 2006, indicating that in order to meet public interest criteria for the grant of a visa he needed to satisfy the Minister that the applicant passes the character test (Exhibit R2). That letter referred to Mr Tham’s convictions in Canada, and asked for a written response by way of a statutory declaration in which he should demonstrate evidence of good character. Mr Tham’s response is at G15/112 of the G-documents. In it he said that he had worked in bus maintenance for the Council of Calgary for the 24 years before coming to Australia. That letter of DIMIA certainly emphasised that in order to be granted a visa Mr Tham needed to satisfy the Minister that he passed the character test, but there was no letter which particularly warned Mr Tham that his visa could be cancelled if he failed the character test.
56. In considering the risk that Mr Tham’s conduct may be repeated, I am mindful of his previous criminal history, his good conduct in prison, and the encouraging reports of Judge Bozic and the psychologists who assessed him. I am mindful also that Matthews J, then President of the AAT stated in Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51] that: Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending. Notwithstanding the positive reports, Mr Tham’s criminal convictions, his conduct in 2004 in Canada, and 2008 in Australia, and therefore the risk of re-offending, weigh against him remaining in Australia.
57. I am satisfied from the evidence that paragraph 10.(1)(a), of the primary considerations, being the protection of the Australian community from serious criminal or other harmful conduct, are at risk if Mr Tham were to remain in Australia. That weighs strongly against him remaining in Australia.

Whether the person was a minor when they began living in Australia

58. The next primary consideration relevant in Mr Tham’s case relates to him not being a minor, rather a man of 45 years when he first began living in Australia. Direction 41, paragraph 10.2(1) states:

If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.

59. Mr Poynder argued that this primary consideration should not be given weight, while the Respondent argued that it was relevant. I am mindful that Rares J stated in Rosson v Minister for Immigration and Citizenship [2011] FCA 194 at [21] that a decision maker, in this case the Tribunal, is entitled to take into account that a person who arrived in Australia as an adult, did so with the knowledge, duties and responsibilities of an adult in the position of the visa holder. ... A decision-maker was entitled to take into account the fact that the person was not a minor. Indeed, a decision-maker was bound to have regard to that consideration by force of cl 10(1)(b).
60. I am satisfied that Mr Tham’s ties and linkages are primarily to Canada where he arrived at the age of approximately 22 years, and lived for at least 24 years, and perhaps even to Vietnam, rather than to Australia, where he has only lived since 2005.
61. I have noted that Mr Tham’s current wife and her family are in Australia, and that she in particular, is supportive of him. Her eldest son, Van Anh Le, who with his wife and one year old, lives with the couple and owns the family bakery, gave evidence at the Tribunal. He said his mother who suffers severe depression, would be devastated if Mr Tham were to be removed from Australia.
62. It is clear Mr Tham was a mature adult when he arrived in Australia, and that his formative years were not spent here. His ties here are to his wife. However, consideration of the primary consideration, whether the person was a minor when they began living in Australia weighs in favour of returning Mr Tham to Canada where he has siblings, three children (born in 1980, 1981 and 1986) and an ex-wife, and where he worked in one job for 24 years. Mr Tham was also back in Canada eight times between 2005 and 2008, in connection he says, with the illnesses of his elderly parents, his mother dying in 2006, and his father in 2008. Mr Tham also has three sisters and two brothers in Canada.
63. The fact Mr Tham was a 45 year old when he arrived weighs against him remaining in Australia.

Length of time ordinarily resident in Australia prior to engaging in criminal conduct

64. The third primary consideration, that is the length of time Mr Tham has been ordinarily resident in Australia prior to engaging in criminal conduct, is further explained in paragraph 10.3(1) of Direction 41. This states that more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
65. As already stated above, Mr Tham arrived in Australia in 2005, and had engaged in criminal conduct for which he has served a prison sentence, approximately three years later. That weighs against him remaining in Australia.

Relevant international obligations, including but not limited to:

(a) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(b) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

66. In this case, the best interests of the child or children is not a relevant consideration. Mr Tham has three adult children in Canada whom he does not often see. His present wife in Australia has four adult children and one 17 or 18 year old. Mr Tham was not involved in their early lives. The oldest son is married with his own family, and one of Mrs Le’s children is not in touch; two boys are heroin addicts, and one was in prison at the time of this hearing.
67. I accept Mr Tham’s evidence and that of his wife that they would miss each other if he is deported to Canada. His wife whose statement was at G14/111, and who suffers health problems including depression, expressed that sentiment very strongly at the Tribunal. She told me that she had been in Australia since 1994, and that she looks after her aged parents in her home.
68. Mr Anh Van Le, oldest stepson of the Applicant, also gave oral evidence. His statement was at G20/118. In it he emphasised his mother’s depression, her dependence on Mr Tham, and how devastated she was to be confronted with his possible deportation. Mr Anh Van Le owns and runs the family bakery, and employed Mr Tham when he arrived in Australia. He said that Mr Tham worked 12 hour a day over various shifts, seven days a week. He says that he paid Mr Tham $750 a week, but that Mr Tham’s work was far in excess of that.
69. Mr Poynder referred to Articles 17(1) and 23(1) of the ICCPR, and the case of Byahuranga v Denmark, Communication No.1222/2003, 9 December 2004, Article 17.7 referring to the separation of families. Mr McLaren made submissions about the ICCPR both orally and in the Respondent’s Statement of Facts and Contentions. He also referred to the case of Zi Pei Shi and Minister for Immigration and Citizenship [2011] AATA 83; (2011) 120 ALD 170 which was appealed. The decision of the Federal Court does not alter Senior Member Allen’s findings that removal of a person from Australia in situations contemplated by Direction 41, and Mr Zi Pei Shi or indeed Mr Tham’s case, does not breach Articles 17(1) or 23(1), that it is indeed authorised by law, and not arbitrary. It is also subject to administrative review.
70. I can understand of course that it is the wish of Mr Tham and his wife that he remain in Australia. However, having weighed up the seriousness and nature of the Applicant’s conduct, and the arguably low risk of recidivism, and the protection of the Australian community, I am satisfied that those considerations outweigh the family’s desire that he remain.
71. There are no international obligations which weigh towards Mr Tham remaining in Australia.

OTHER CONSIDERATIONS

72. Direction 41 states that other considerations, where relevant, must be taken into account but, generally, should be given less weight than the primary considerations. Relevant considerations in Mr Tham’s case are his family ties, and the nature and extent of his relationships with those in the Australian community, his age, his links with Canada, and whether he has been formally warned in the past that his visa might be cancelled because of criminal conduct.
73. Mr Tham’s family ties have been discussed in the paragraphs above. I am mindful that his family will miss him if the decision to cancel his visa and return him to Canada is upheld. However, if his wife does not choose to move with him due to her health, her family and her business commitments in Australia, she can stay in touch via the telephone, and electronic means. She has also previously travelled to Canada where the couple were in fact married.
74. Mr Tham has undertaken a number of courses while incarcerated such as the 12-Step Program (AA,GA,NA), and a Certificate 1 in Information Technology. However he held down a job in Canada for 24 years, has bakery skills learnt and practised in Australia, and is likely to be able to obtain employment in Canada.
75. Mr Tham’s age can be taken into account in coming to a decision. He is currently 52 years old, and will be able to work and make a new life for himself in Canada. He has siblings, an ex-wife and his three children there.
76. As already stated above, Mr Tham was not formally warned that his visa could be cancelled if he did not meet the character test. However he was made aware of good character in the correspondence he received from DIMIA and to which he replied by way of Statutory Declaration (represented by a Vietnamese solicitor), in connection with his visa application.
77. Mr Poynder tendered a reference for Mr Tham and Mrs Le from the Abbess of Lien Hoa Temple, the Most Venerable Thich Nu Tam Lac (Exhibit A4). The Abbess stated that she had known the couple since 2005, that they attended the temple regularly, and that they had assisted with fund raising. She praised Mr Tham as a selfless, trustworthy, honest and caring person, noting that Mr Tham has expressed remorse for his actions. She also stated that Mr Tham’s incarceration has taken a huge toll on Mrs Le’s mental state.
78. I am satisfied that a consideration of all the other considerations does not outweigh the primary consideration of the protection of the Australian community. The evidence in connection with the primary considerations weighs significantly against Mr Tham, and in favour of cancellation if his visa.

CONCLUSION

79. There is no dispute that Mr Tham does not pass the character test. In then considering the discretion in Direction 41, my first task was to weigh up the primary considerations to which I am required to give greater weight.
80. The primary considerations, being the protection of the Australian community, consideration of the fact Mr Tham was not a minor, but 45 years old when he arrived in Australia, and the fact that he re-offended in relation to cannabis approximately three years after arriving, outweigh any hardship to the Applicant and his family such that the discretion in section 501 of the Act should not be exercised in the Applicant's favour. Having weighed up all the considerations, including the other considerations contemplated by Direction 41, I am satisfied that the decision of the Minister to cancel Mr Tham’s visa should be affirmed.

DECISION

81. The Tribunal affirms the decision under review.

I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed: .........sgd.........................................................................

Associate

Date of Hearing 24 August 2011

Date of Decision 7 September 2011

Counsel for the Applicant Mr N Poynder

Solicitor for the Applicant MY.T. Nguyen Solicitors
Solicitor for the Respondent Mr D McLaren, Sparke Helmore