Chu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 3248

Chu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3248 (11 October 2022)

Division:GENERAL DIVISION

File Number(s):      2022/6124

Re:Cat Anh CHU

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Deputy President B W Rayment OAM KC

Date:11 October 2022

Place:Sydney

The reviewable decision is set aside and substituted by a decision that the applicant’s partner visa should not be refused.

...............................[SGD].........................................

Deputy President B W Rayment OAM KC

Catchwords

MIGRATION – application for partner visa (Class UK) – dealing with property reasonably suspected of being proceeds of crime – academic misconduct – police suspicion of misconduct – passenger card failure to disclose conviction – whether discretion should be exercised to refuse visa under s 501(1) of the Migration Act 1958 (Cth) – decision under review set aside and substituted

Legislation

Criminal Code Act 1995 (Cth) s 400.9

Migration Act 1958 (Cth) s 499

Cases

Minister for Immigration & Multicultural Affairs v Ali (2000) 106 FCR 313

Minister for Immigration & Ethnic Affairs v Gungor (1982) 63 FLR 441

Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139

Minister for Immigration and Ethnic Affairs v Pochi (1981) 4 ALD 163

Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33

Secondary Materials

Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 90 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021)

Reasons for Decision

Deputy President B W Rayment OAM KC

11 October 2022

1. The applicant is a citizen of Vietnam, aged thirty. She left Vietnam some thirteen years ago and spent three or four years in New Zealand. She came to Australia in 2013 to pursue university studies for a Bachelor of Commerce degree at Deakin University in Victoria. She has worked for an accounting firm during her nine years in Australia, and now lives with her sister in Sydney. At present she and her sister have employment as beauticians. She married in Australia and the marriage broke down when she was subjected to family violence by her husband.

2. She made an application for a partner visa, which, if granted would endure for two years, and then may be made a permanent visa, entitling her to remain here indefinitely. The visa was refused on character grounds. That decision is before the Tribunal for review. The main ground of refusal was based on a conviction of her in 2015 for an offence committed in 2013, some three months after her arrival in Australia, when she was nineteen years old.

3. She was charged with an offence under s 400.9 of the Criminal Code Act 1995 (Cth), after the police were called by an Australian bank as she attempted to bank cash into the local accounts of Vietnamese students. The circumstances were explained as follows in her evidence: she said that a person known to her mother, Mr Nguyen, and described as a friend of her mother asked her to bank the cash in specified amounts to the accounts of the students, who were unknown to her, whose parents would repay the money to Mr Nguyen when he returned to Vietnam. The money apparently came from the proceeds of sale of an Australian property sold by Mr Nguyen, and the applicant’s mother was involved in the effecting of the transactions in Vietnam to assist Mr Nguyen.

4. She said she was unaware of any illegality involved in what she was doing. She said that she did not believe that the money involved was the proceeds of any crime. She was tried before a jury over a two week period, and was convicted of the offence, but given a non-custodial sentence. Mr Nguyen was called at the trial, as also was the solicitor who handled the conveyance of his property. However the applicant was not called, and she said that her counsel advised her not to go into the witness box. I have no evidence indicating the basis of the advice she received.

5. The statute made the Crown case in chief easy to prove since she was deemed reasonably to suspect that the money was the proceeds of crime if, as was the case, her own means showed that the money in question was not her own property. The section provided one escape route only in those circumstances, if the defendant proved that she did not have reasonable grounds for suspecting that the money represented the proceeds of crime. Such a case was apparently not proved to the satisfaction of the jury, and as the trial judge said in his remarks on sentence, he did not instruct the jury to answer questions about the evidence of Mr Nguyen and his solicitor.

6. Nevertheless the applicant was convicted, and I am bound by that conviction and am also bound by the sentence imposed on her: see per Fox J in Minister for Immigration & Ethnic Affairs v Gungor (1982) 63 FLR 441 at 445-446, cited by Branson J in Minister for Immigration & Multicultural Affairs v Ali (2000) 106 FCR 313. I proceed accordingly.

7. The applicant’s offending was now nine years ago. She was sentenced to two year’s imprisonment expiring on 27 August 2017, to be served by way of an intensive corrections order within the community. She complied with the relevant conditions and was allowed during the term to visit her mother in Vietnam on one occasion. His Honour said he did not think there was a strong need for specific deterrence. He said, as has proved to be the case:

   I do not think this offender will come under adverse notice again. She has an otherwise compelling subjective case, a relatively young person with impressive good character both generally and specific. She has contributed to her family and society by way of her usual good conduct, work and academic record and her apparent religious devotion. She had only been in Australia for seven weeks. She has recently separated from her husband after a short marriage due to abuse and violence. She has no criminal record and certainly no matters of dishonesty. I am of the view this offender has strong prospects of rehabilitation and minimal chance of re-offending.

8. She has not reoffended since 2013 and the respondent has used three subsequent matters to suggest that her character may be flawed. The first of those is that at Deakin University. She left an exam room and went to the bathroom with her mobile phone. That is a suspicious circumstance which led to her being given zero for the unit of study, although the university did not include the failure on her academic record. Her evidence was that she had food poisoning and was ill during the exam. She said that the exam questions were about calculations required to be done by the examinees, for which she did not and could not obtain any assistance from the internet. That subject is the one remaining subject in her degree which she will complete later this year or early next year.

9. I do not think that the first matter does her any credit, but I am not satisfied that such academic misconduct is an independent reason to deny her a visa. It is possible that her conduct was a very poor decision not accompanied by any intention to cheat.

10. The second matter is that a police officer wrote a letter to the respondent which came to the attention of the delegate of the respondent. In that letter remarks were made about the applicant by the police officer adverse to the applicant which, on its face, were plainly unreliable, and which falls into the category described by Brennan J when President of this Tribunal in Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 58 as a document which raises only a suspicion of misconduct by the applicant. On appeal, Deane J, with whom Evatt J agreed, said that in his opinion “the Tribunal was bound, as a matter of law, to act on the basis that any conduct alleged against Pochi which was relied upon as a basis for sustaining the deportation order should be established, on the balance of probability, to its satisfaction by some rationally probative evidence and not merely raised before it as a matter of suspicion or speculation or left, on the material before it, in the situation where the Tribunal considered that, while the conduct may have occurred, it was unable to conclude that it was more likely than not that it had.” On further appeal to the High Court, those remarks of Deane J were specifically approved by Gibbs CJ, Mason, Aickin and Wilson JJ: see the judgment rescinding special leave at 4 ALD 163 at 164. Having heard the evidence of the applicant when cross-examined about the document, I am also satisfied that the terms of the document should be left out of account in any event.

11. The third matter is that on incoming passenger cards she did not disclose her conviction in the District Court. To some extent that is sought to be justified on the basis that there was an appeal pending or the subject of an application to extend time. I do not accept that explanation, but it seems to me that as a communication to the respondent the infraction is relatively minor. The conviction itself plainly came to the notice of the respondent.

12. Since the applicant’s conviction of 2013 means that she does not pass the character test, I turn to the mandatory considerations specified in Direction 90 which the Tribunal is required by s 499 of the Migration Act 1958 (Cth) to consider when re-exercising discretion in this matter. Its terms are published, and I will not repeat them here.

13. The first mandatory consideration is the protection of the Australian community. I accept that the applicant’s conviction relates to a serious crime and have already set out the sentencing judge’s reasons for accepting that the chances of the applicant re-offending are minimal. The reasons for her non-custodial sentence, which tend to be confirmed by her subsequent good conduct also influence my reaction to the first mandatory consideration, which includes a requirement to consider the likelihood of the non-citizen reoffending, which appears to me to have been correctly described by the sentencing judge.

14. The applicant committed no family violence.

15. There are several infants who are related to the applicant. She has a niece and the children of her cousin, and it is in the best interests of each of those infants that the applicant should remain in the community.

16. The deemed expectations of the Australian community weigh against the applicant in the light of her offending.

17. Despite submission by Mr Chia for the applicant that her case attracts Australia’s statutory protection obligations, I am not satisfied that, having been a person who has been a victim of family violence, returning her to Vietnam attracts protection obligations.

18. The consideration of links to the Australian community, especially in the case of her Australian relatives, counts in the applicant’s favour.

19. A consideration not mentioned expressly in the Direction also affects the exercise of discretion in this case. That is the fact that the applicant plainly desires to make her home in Australia, and intends to stay here. She has had university education here, about to be completed in the form of a degree. She has deliberately made her home here, and sending her back to the country of her birth after she has spent the majority of her adult years here intending and wishing to remain here for many future years would be to fail to treat her humanely.

20. In my opinion balancing each of the factors I have mentioned, the correct or preferable decision is that her application for a partner visa should not be refused. In the result the reviewable decision will be set aside and substituted by a decision that the partner visa should not be refused.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

...................................[SGD].....................................

Associate

Dated: 11 October 2022

Date(s) of hearing:	21, 27 September 2022
Counsel for the Applicant:	Mr R Chia
Solicitors for the Applicant:	Ms J Quach, TQH Lawyers & Consultants; Mr J Ta, TQH Lawyers & Consultants
Solicitors for the Respondent:	Mr R Harvey, Australian Government Solicitor