Bui v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2024] FedCFamC2G 49

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Bui v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 49

File number(s): SYG 251 of 2019
Judgment of: JUDGE GIVEN
Date of judgment: 29 January 2024
Catchwords: MIGRATION – Applicant initially charged with certain indictable drug offences – Notice of Intention to Consider Cancellation issued in respect of initial charges – visa cancelled by delegate – where charges later changed to charge of concealing serious indictable offence to which applicant pleaded guilty – whether error by Tribunal in reaching state of satisfaction that grounds existed to cancel visa based on different charge – whether error in failing to consider PAM3
Legislation:

Crimes Act 1900 (NSW) s 316

Migration Act 1958 (Cth) ss 48, 116, 476, 501

Cases cited:

BHP Billiton Direct Reduced Iron Pty Ltd v Duffus, Deputy Commissioner of Taxation (2007) 99 ALD 149

COT15 v Minister for Immigration and Border Protection (No 1) (2015) 236 FCR 148

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43

Gong v Minister for Immigration and Border Protection (2016) 309 FLR 151

Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120

Minister for Immigration and Border Protection v Sabhwarwal [2018] FCAFC 160

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Xie v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 641
Division: Division 2 General Federal Law
Number of paragraphs: 106
Date of hearing: 15 June 2023
Place:  Sydney
Counsel for the Applicant:  Mr B Zipser
Solicitor for the Applicant:  Andy Pham Lawyers
Counsel for the Respondents:  Mr N Swan
Solicitor for the Respondents:  Sparke Helmore

ORDERS

SYG 251 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

XUAN THIEN BUI

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE GIVEN

DATE OF ORDER:

29 JANUARY 2024

THE COURT ORDERS THAT:

1.The application filed on 6 February 2019, as amended, is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE GIVEN:

  1. Before the Court is an application made pursuant to s 476(1) of the Migration Act 1958 (Cth) (Act), for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 8 January 2019 (Court Book (CB) 69 to 78), which affirmed a decision of a delegate of the first respondent (delegate) to cancel…

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Bui v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 49
Case
[2024] FedCFamC2G 49
Decision Date

CaseChat Overview and Summary

The applicant in Bui v Minister for Immigration, Citizenship and Multicultural Affairs challenged a decision to cancel his visa, contending that the Tribunal had erred in its reasoning and in failing to consider certain policies. The case involved the applicant, initially charged with drug offences, whose visa was subsequently cancelled by a delegate and affirmed by the Tribunal. The Tribunal found the applicant’s presence in Australia posed a risk to community safety or good order, leading to the cancellation of his visa based on the concealment charge to which he pleaded guilty.

The primary legal issues the court needed to address were whether the Tribunal erred in finding that grounds existed to cancel the visa based on a different charge and whether it failed to consider relevant policy documents. The applicant argued that the Tribunal's satisfaction that grounds for visa cancellation existed was illogical and unreasonable, and that it did not consider the PAM3 Policy Document. The court examined whether the Tribunal's decision was based on a logical and rational assessment of the facts and whether the relevant policies were appropriately considered.

The court found that the Tribunal's decision was based on a logical and rational assessment of the circumstances, particularly the concealment charge to which the applicant pleaded guilty. The court held that the Tribunal sufficiently explained its reasoning, noting the applicant’s lack of remorse and appreciation of the gravity of his conduct. The court further determined that the Tribunal did not err in failing to consider the PAM3 Policy Document, as the concealment charge did not pertain to property offences, which were the focus of that policy. Therefore, the Tribunal's decision was upheld as valid and rational.

The orders of the Tribunal were affirmed, and the applicant's appeal was dismissed. The court found no merit in the applicant's contentions, confirming the Tribunal's decision to cancel the visa as appropriate and lawful.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 8 January 2019, the Tribunal affirmed the delegate’s decision (CB 69 to 78). The decision of the Tribunal The Tribunal summarised the background to the review and the relevant law (CB 70 at [1] to [6] and 71 at [11]). The Tribunal was satisfied that the presence of the applicant in Australia may be a risk to the safety or good order of the Australian community and that therefore, that the grounds for cancellation contained in s 116(1)(e) existed (CB 74 at [25]). The Tribunal observed that the two original charges had been withdrawn and, in their place, the applicant had been charged with the concealment charge (CB 72 at [17]). It noted that the applicant had pleaded guilty to the concealment charge, summarised the Statement of Agreed Facts, and observed that the applicant had been sentenced to the Correction Order (CB 72 at [17] to [18]). The Tribunal summarised the applicant’s evidence to it about the circumstances of the concealment offence (CB 73 [19]). The Tribunal found the applicant’s evidence to be unpersuasive and deliberately evasive (CB 73 at [20] to [22]). The Tribunal did not accept the applicant’s claim that it was while in prison that he had learned the difference between right and wrong, and that he now wanted to help other people who are the victims of criminals (CB 73 at [23]). The Tribunal found it to be of “considerable concern” that, despite his guilty plea and conviction of the concealment offence, the applicant maintained to the Tribunal that he was simply “at the wrong place at the wrong time” and that he had pleaded guilty as a matter of convenience. The Tribunal was not satisfied that the applicant was remorseful for his conduct, nor that he had an appreciation that his conduct in committing the concealment offence was contrary to law. The Tribunal was not satisfied that the applicant fully appreciated his obligations as a member of the community (CB 74 at [24]). The Tribunal then turned to consider the exercise of its discretion (CB 74 at [26]). The Tribunal observed that the applicant was in Australia as the holder of a Partner visa, and that he had been fulfilling the purpose of that visa (CB 74 at [27] to [29]). It accepted that cancellation of his visa would result in his application for a permanent partner visa being refused, and that he would be subject to s 48 of the Act, although he would nonetheless be able to apply for further visas (CB 74 at [27]). The Tribunal accepted that the applicant had a young child with Ms Q (CB 75 at [31]) and that if the visa was cancelled, and another visa not granted, the applicant may be required to leave Australia, with the result that he may be separated from Ms Q and their child (if they did not go to Vietnam with him) (CB 74 at [31] to [32] and 75 [37]). The Tribunal accepted that cancellation of the visa would cause considerable hardship to the applicant’s family (CB 76 at [38]) but not that it would result in the applicant being permanently separated from them because he could apply for a future visa from Vietnam and significantly that, in any event there was no certainty that the applicant would have been granted a permanent visa to stay in Australia even if visa cancellation did not occur (CB 75 at [32]). The Tribunal was also not satisfied that Ms Q and the child could not travel to Vietnam with the applicant at least for some period or that, if the family were to stay in Vietnam, they would suffer significant hardship (CB 75 at [33]). It also did not accept that the applicant being unable to achieve a standard of living at “Australian standards” while in Vietnam would constitute hardship (CB 75 at [34]).

Ratio Decidendi

Legal Principle Established

The first respondent points to the Tribunal having summarised the circumstances leading to the Applicant’s conviction at [7], [17] and [19] of the reasons for decision as providing a sufficiently logical basis for its state of satisfaction that grounds for cancellation existed. Consideration By this ground the applicant alleges the Tribunal’s finding at [25] that grounds for cancellation of the visa existed, pursuant to s 116(1)(e) of the Act, was illogical, irrational or unreasonable. It is also alleged to be invalid on the basis that the Tribunal allegedly failed to take into account the PAM3 Policy Document. The ground is not made out and is, in essence, a veiled attempt at merits review reflected by the rhetorical question asked at [30] of the applicant’s written submissions: as to how the AAT could be satisfied that “the presence of [the applicant] in Australia is or may be, or would or might be, a risk to: (i) the health, safety or good order of the Australian community or a segment of the Australian community; or (ii) the health or safety of an individual or individuals. The Tribunal explained how it was so satisfied. The key to that satisfaction at [21] to [23] regarding the ultimate concealment charge (to which the applicant pleaded guilty). The applicant has now sought to somehow marginalise or diminish the concealment charge, including by submissions to the effect that the offence does not involve “moral wrongdoing”, although the concept of moral wrongdoing is not part of the requirements of s 116 of the Act. Further, references to PAM3 in relation to “property offences” seems inapposite. The concealment charge was not a property offence, nor was the matter the applicant was concealing a property offence. When the original charges were extant, submissions were made for the applicant to the delegate acknowledging on his behalf of the seriousness of them: see CB 10 at [17] and CB 11 at [26] and [27]. The Tribunal decision records at [15] that the applied argued (emphasis added): that since the serious charges against him would be withdrawn, the cancellation should be set aside. The applicant’s representative states that the cancellation of his visa constitutes a ‘denial of justice and human rights’ and is contrary to the principles of the presumption of innocence. The latter sentence appears to contextualise this summary as being the written submission sent by the applicant’s representative to the Tribunal (CB 43 to 50) where it was said (CB 45) (emphasis added):The Department has also stated, “While I acknowledge that the visa holder denies the charges he is facing, my role is not to determine guilt or innocence, my role is to consider whether the visa may pose a risk to the health of the Australian community. Given the visa holder has allegedly been involved in the cultivation and supply of a drug which is known to have potential adverse impacts on the health of those who use the drug, I am satisfied that risk exists”. Again, the client will no longer be charged with cultivation hence the risks stated by the Department no longer exists and cannot be attributable to him.