Pham v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 315

FEDERAL COURT OF AUSTRALIA

Pham v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 315 IMMIGRATION - Deportation Order - non-citizen convicted of an offence – serious criminal record - decision affirmed by Administrative Appeals Tribunal – balancing competing considerations – community expectations - best interests of the child – duty of Tribunal to obtain current psychological report Migration Act 1958 (Cth), ss 200, 201, 499 and 500, General Direction No. 9 UN Convention Relating to the Status of Refugees 1951 VAN HUNG PHAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 2315 OF 2005 TAMBERLIN J SYDNEY 29 MARCH 2006

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2315 OF 2005

BETWEEN: VAN HUNG PHAM

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 29 MARCH 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The application is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2315 OF 2005

BETWEEN: VAN HUNG PHAM

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 29 MARCH 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application to challenge a decision of the Administrative Appeals Tribunal ("the Tribunal"), made on 9 June 2005 affirming the issue of a Deportation Order against the applicant by a Ministerial delegate. 2 By s 200 of the Migration Act 1958 (Cth) the Minister has a discretionary power to order the deportation of a non-citizen in circumstances where the person has been convicted of an offence, if the person had been in Australia as a permanent resident for a period of less than ten years and the offence carries a sentence of imprisonment for a period of not less than one year. 3 The applicant's circumstances are as follows. He was born in North Vietnam on 10 March 1972. In 1988 he travelled to Hong Kong seeking refugee status, and until 1993 lived in detention in a refugee camp in Hong Kong and married a fellow refugee. In 1993 and 1994, he lived in a refugee camp in the Philippines and met a lady who is referred to in the material as Ms Thi Thuy Hang Le. On 29 June 1995, the applicant entered Australia sponsored by his wife, and he claims that his marriage was dissolved soon thereafter. No decree of dissolution was produced but he commenced living in a de facto relationship with Ms Le soon after his arrival in Australia. On 17 April 1997, the applicant and two other men committed an armed robbery during which a 67 year old man was severely assaulted and money was stolen from him. One offender was armed with a loaded pistol. The applicant was armed with an army style knife with which he assaulted the victim by striking him with the handle. On 13 October 1997 he pleaded guilty to one count of robbery being armed in company and wounding contrary to the Crimes Act 1900 (NSW). He was sentenced on 13 February 1998 to five and a half years in prison with a minimum term of three years backdated to 17 April 1997. 4 On 22 June 1998, a letter was written to him by the Department stating that he may be liable for deportation under s 200 of the Migration Act 1958 (Cth) ("the Act"). The applicant subsequently appealed against the severity of his sentence, but this was dismissed by the New South Wales Court of Criminal Appeal on 2 August 1988. On 18 January 2000, the applicant was interviewed by Departmental officers with respect to his liability for deportation. On 16 April 2000, he was released from prison on parole. On 1 May 2000, the Minister's delegate signed a Deportation Order in respect of the applicant. On 25 May 2000, the Department wrote to the applicant advising that a decision had been made as to his deportation and requesting that the applicant contact the relevant officer. A Departmental officer spoke to the applicant on 30 May 2000 and requested that the applicant attend the Departmental Office on 2 June 2000 to be detained. However, the applicant did not keep that appointment and was not detained. 5 Thereafter until 2003, the applicant remained at large living with Ms Le, who became pregnant in early 2003. On 22 February 2003, the applicant was arrested by New South Wales Police on one charge of shop lifting and a charge of parole violation. He was sentenced to imprisonment for one year, three months and twenty seven days in respect of the parole violation. He was also sentenced for one month, to be served concurrently, in respect of goods in custody suspected of being stolen. He was put in prison at Silverwater. He escaped from prison on 7 May 2003 and remained at large until February 2004. His son was born on 27 October 2003. On 14 February 2004, he was arrested in Victoria and later convicted and sentenced to four months imprisonment for theft. On 23 March 2004, he was served with the Deportation Order dated 1 May 2000 and on 13 June 2004 he was extradited to New South Wales for escape and breach of parole. On 15 June 2004, he was sentenced to eighteen months imprisonment for escaping from custody in the Sydney District Court. 6 Largely as a result of the applicant breaching his parole and failing to present himself to the Department in June 2000, he was not formally notified of the Department's original decision to issue a deportation order until 23 March 2004. The applicant did not seek review of the delegate's decision until 8 April 2004. 7 The Tribunal held a hearing in respect of the applicant's application for review on 15 and 23 February 2005, and on 9 June 2005 published its decision affirming the decision under review. The applicant has served his latest sentence and is now in Immigration detention at Villawood Detention Centre.