CQBW and Minister for Home Affairs (Migration) - [2019] AATA 5177

CQBW and Minister for Home Affairs (Migration) [2019] AATA 5177 (28 November 2019)
Division:GENERAL DIVISION
File Number: 2019/5677
Re:CQBW
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member Tigiilagi Eteuati
Date:28 November 2019
Place:Brisbane

The decision under review is affirmed.
.........................[sgd]...............................................
Member Tigiilagi Eteuati
Catchwords
MIGRATION – refusal of application for Bridging visa under section 501(1) – Applicant failed to pass the character test under section 501(6)(a) - whether the discretion to refuse to grant the Bridging visa should be exercised –- consideration of non-refoulement obligations, harm and hardship - application of Direction No. 79 –decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
AXT19 v Minister for Home Affairs [2019] FCA 1423
DGI19 v Minister for Home Affairs [2019] FCA 1867
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Immigration and Border Protection v Le[2016] FCAFC 120
Omar v Minister for Home Affairs[2019] FCA 279
QQYJ and Minister for Home Affairs (Migration) [2019] AATA 770
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Trang and Minister for Home Affairs (Migration) [2019] AATA 4087
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member T Eteuati
28 November 2019
BACKGROUND

This is an application by CQBW (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister”) on 29 August 2019 to refuse to grant the Applicant a Bridging E (Class WE) visa, under section 501(1) of the Migration Act 1958 (Cth) (“the Act”).
The Applicant first arrived in Australia on 30 November 2007 as the holder of a Subclass 573 (Higher Education Sector) student visa. She was granted a second subclass 573 Visa on 25 September 2009. On 18 January 2010, the Applicant departed Australia, returning on 3 March 2010. She held a Bridging visa between September and October 2011 before being granted a third subclass 573 Visa on 19 October 2011 which expired on 7 May 2014. She was granted a number of Bridging visas between 5 August 2014 and 1 September 2015.
On 13 August 2014, the Applicant made a combined application for subclasses 820 and 801 Partner visas.
On 27 August 2014, an Apprehended Domestic Violence Order (AVO) was issued by the Local Court of New South Wales against the Applicant’s then partner for the protection of the Applicant.
On 10 October 2014, the Applicant was arrested and charged in relation to drugs she received from overseas. The Applicant pleaded guilty to one count of attempt to possess a commercial quantity of unlawfully imported border controlled drug. On 14 June 2017, the Applicant was convicted of the offence and was sentenced to 8 years imprisonment with a non-parole period of three years and nine months.
On 31 October 2014, the Department wrote to the Applicant’s partner acknowledging that he had withdrawn his nomination regarding the Applicant’s application for a Partner visa.
On 22 May 2015, a delegate of the Minister refused the Applicant’s combined application for a Partner visas. The Applicant sought review of that decision in the Migration Review Tribunal which became part of the Migration and Refugee Division of the Tribunal on 1 July 2015. The Applicant said that her application for review was unsuccessful and that she sought review of the Tribunal’s decision in the Federal Circuit Court. The Federal circuit Court remitted the matter to the Tribunal and it appears that at some time in August 2016 the Tribunal remitted the Applicant’s matter for reconsideration by the Minister’s delegate.
The Applicant was eligible for parole on 11 July 2018. However, she did not apply for parole in July 2018 as she said that she was concerned that if she was released on parole before the determination of her Partner visa application, she would be removed from Australia. Instead the Applicant remained in prison until she was released on parole on 2 July 2019. On 3 July 2019, the Applicant contacted her former migration agent to enquire as to the progress of a Partner visa application. She was informed that a decision had not been made and was advised to apply for a Bridging visa so that she could remain in the community pending the outcome of a Partner visa application.
On 4 July 2019, the Applicant attended upon an office of the Department in Sydney to enquire about applying for a Bridging visa. As she did not hold a visa she was detained and transferred to the Villawood immigration detention centre. She has remained in immigration detention ever since.
The Applicant applied for a Bridging visa on 11 July 2019 while she was detained. She was issued with a notice of intention to consider refusal (NOICR) on 15 July 2019. She provided a response to that notice on 31 July 2019.
On 29 August 2019, the Minister’s delegate refused her application for a Bridging visa. The effect of section 501F of the Act is that the Minister is taken to have refused her combined application for Partner visas when the Minister’s delegate refused her application for a Bridging visa.
The Applicant received notification of the refusal decision on 5 September 2019 and applied for review of that decision with the Tribunal on the same day.
The matter currently before the Tribunal was heard between 11 and 12 November 2019.
For the reasons below, I have found that the decision of the Minister’s delegate to refuse the Applicant’s application for a Bridging E visa should be affirmed. The Tribunal considers that this is the correct decision in this case.
ISSUES
Section 501(1) of the Act provides:
“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. “
The two issues are:
·whether the Applicant does not satisfy the Tribunal that the Applicant passes the character; and if so
·whether the Tribunal considers that the discretion in section 501(1) of the Act, to refuse to grant the Applicant a visa, should be exercised.
If the Applicant satisfies the Tribunal that the Applicant passes the character test, the refusal decision must be set aside as the power to refuse to grant the Applicant a visa under section 501(1) of the Act is not enlivened.
If the Applicant does not satisfy the Tribunal that the Applicant passes the character test, the discretion in section 501(1) of the Act to refuse to grant the Applicant a visa is enlivened. The Tribunal must consider whether the discretion should be exercised. If the Tribunal decides that the discretion in section 501(1) of the Act should be exercised to refuse to grant the Applicant a visa, the appropriate decision is to affirm the decision under review.
If the Tribunal decides that the discretion in section 501(1) of the Act should not be exercised to refuse the Applicant a visa, the appropriate decision would be for the refusal decision to be set aside and for the matter to be remitted for reconsideration with the Direction that the discretion in section 501(1) of the Act to refuse to grant the Applicant a visa not be exercised.
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A3 and the documents tendered into evidence by the Respondent and marked as exhibits R1 to R2. The evidence contained in these documents is discussed throughout these Reasons: see ‘Annexure 1’. Although the Tribunal has considered all of the relevant material, the Tribunal has not discussed each potentially relevant document in these Reasons. Rather, the Tribunal has referred to the evidence which was considered to be the most relevant to the decision.
The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in subsections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two (2) clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.
As the Applicant was self-represented, to ensure fairness to the Applicant, the Tribunal took an active role in asking the Applicant questions.
A summary of evidence is provided below from paragraph 41 of these Reasons.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Subsection 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Subsection 501(7) relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if she has been sentenced to a term of imprisonment of 12 months or more.
Subsection 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
The National Police Certificate for the Applicant dated 12 October 2017 shows that on 14 June 2017, the Applicant was convicted of “Attempt import/exporting commercial quantities of border controlled drugs” and sentenced to 8 years imprisonment with a non-parole period of 3 years and 9 months. However, it is clear from the sentencing remarks that the Applicant was actually convicted of attempting to possess a commercial quantity of an unlawfully imported border controlled drug. This was accepted by the Applicant. The applicant had initially been charged with an additional importation related charge but this was withdrawn.
The Tribunal is satisfied the Applicant has a substantial criminal record for the purposes of paragraph 501(6)(a) when read with paragraph 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of at least 12 months.
Consequently, the Tribunal is satisfied that the Applicant does not pass the character test.
SHOULD THE DISCRETION TO REFUSE THE APPLICANT’S VISA APPLICATION BE EXERCISED?
In considering whether to exercise the discretion in section 501(1) to refuse to grant an Applicant a visa, the Tribunal must comply with any Directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether to refuse to grant an Applicant a visa.
Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to consideration of visa refusal are contained in Part B of the Direction.
Paragraph 11 of the Direction provides for three primary considerations. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 12 of the Direction provides for other considerations. They include but are not limited to:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Subparagraphs 8(3) to (5) of the Direction provide:
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the current Direction (Direction 79).
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 of the Direction provide a framework within which decision-makers should approach their task of deciding whether to refuse to grant a visa. The principles in paragraph 6.3 are as follows:
(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere
(3)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)    Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Summary of evidence
The following is a summary of the evidence. The evidence referred to below includes evidence provided in written material submitted to the Department and the Tribunal and evidence given by witnesses at the hearing in response to questions in cross examination and from the Tribunal.
The Applicant
The Applicant was born in Vietnam in 1987. She was raised in Vietnam in a household that included her parents and younger sister.
The Applicant described her family as a very strict and traditional one and said that she was raised in accordance with strict “order and principle”. She said that her relatives on her mother’s side were very religious. She said that her relatives on the father’s side had connections with the “Vietnam Communist Government’s Military”.
The Applicant reported that she was exposed to constant domestic violence throughout her childhood. She reported to a psychologist that her father was verbally and physically abusive towards her mother and that he was also physically abusive towards the Applicant. She reported that she has a scar on the forehead which was sustained during a beating by her father. She said that her father had wanted a daughter as a firstborn and would rarely speak to the Applicant. The Applicant reported that she discovered that she was transgender when she was 10 years old. She explained that from that age she identified as a female rather than a male. She reported that her father would tell her that she was wrong and that “it was just a phase.” She said that her father never accepted that the Applicant was transgender and “wanted to dress and be a female”. She described that she had a sad childhood. The Applicant also reported that she would suffer harassment and taunting by members of the community in Vietnam on the basis of her sexual identity. She said that people would sometimes call her “it” because she was a transgender female.
The Applicant had reported that from the age of 11 her parents separated and reconciled on numerous occasions. She said that during periods when her parents were separated she would reside with her mother.
The Applicant indicated that she applied for and was granted a Student visa when she was 19 years of age. She said that she had wanted to come to Australia to live with her maternal grandmother here in order to avoid the violence that she had suffered as a child at the hands of her father and to attain educational qualifications. The Applicant indicated that after her arrival she completed a six-month English language course. She then began a Diploma of Accounting which she completed in around 2010. The Applicant began a Bachelor degree but has not completed it.

The Applicant indicated that she was very happy when she left Vietnam for Australia. She said that she felt that in Australia the community accepted her as a transgender female. The Applicant indicated that she understood that the student visas that she held were temporary visas essentially requiring her to return to Vietnam upon the expiry of the visas. She said that she also understood that it was a criterion of those visas that the Applicant intended to remain temporarily in Australia for the purpose of studying.
The Applicant indicated that she met her former partner in around 2009 or 2010 and remained with him until they separated after her arrest in October 2014.
The Applicant indicated that she ceased studying altogether in 2012 as her former partner told her that she did not need to continue to study to meet her visa conditions as he would nominate her as his partner for the purposes of applying for a Partner visa. The Applicant indicated that between 2012 and 2013 she and her former partner operated a nail technician business but this failed in 2013 owing to the Applicant’s lack of business management experience. The Applicant indicated that this caused problems in her relationship with her former partner.
The Applicant indicated that she was subjected to domestic violence at the hands of her former partner. She said that an application for an AVO was made to a New South Wales court on that basis. An AVO was made on 27 August 2014 shortly after she had applied for a Partner visa. The Applicant indicated that her former partner had pleaded guilty to the charge of common assault perpetrated against the Applicant.
The Applicant was arrested in relation to her offence on 10 October 2014 and was in criminal custody until 2 July 2019. The details of her offending are discussed below.
While in prison the Applicant formed the relationship with a New Zealand inmate who was imprisoned for murder. The Applicant indicated that since she has been imprisoned she has witnessed first-hand the effects that drugs such as methamphetamine have on individuals and the community. She said that she observed the number of inmates who had committed offences either because they were addicted to drugs or because they were involved in the illicit drug trade. The Applicant indicated that her own partner committed murder while under the influence of methamphetamine.
The Applicant indicated that her partner will be eligible for release on parole in 2021. She has said that her partner intends to return to New Zealand once he is released on parole. The Applicant has said that she has discovered that because of her offences she will not be able to travel to New Zealand for three years after her release. She said that she and her partner intend to continue their relationship after her partner’s release by meeting in a third country, probably Vietnam, every three months until the Applicant is allowed to travel to New Zealand.
The Applicant was eligible for parole on 11 July 2018. However, she did not apply for parole in July 2018 as she said that she was concerned that if she was released on parole before the determination of her Partner visa application, she would be removed from Australia. Instead, the Applicant remained in prison until she was released on parole on 2 July 2019. On 3 July 2019 the Applicant contacted her former migration agent to enquire as to the progress of a Partner visa application. Her migration agent informed her that a decision had not been made and was advised to apply for a Bridging visa so that she could remain in the community pending the outcome of a Partner visa application.
On 4 July 2019 the Applicant attended upon an office of the Department in Sydney to enquire about applying for a Bridging visa. As she did not hold a visa, she was detained and transferred to the Villawood Immigration Detention Centre. She has remained in immigration detention ever since.
The Applicant indicated that she has a number of family members in Australia. She said that she is particularly close to her grandmother who assisted in her initial arrival in Australia in 2007. The Applicant indicated that she would speak with her grandmother by telephone every week when she was in criminal detention and that they speak by telephone almost every day since she has been in immigration detention.
The Applicant indicated that she has two maternal uncles in Sydney who she is close to. She also indicated that she knows her uncles wives and is close with three of their children. She said that one of her cousins was a teacher, the other was an architect and it appears that the third one is still at university. None of the Applicant’s family members are under the age of 18.
In addition, the Applicant indicated that her grandmother has a sister in Melbourne and a brother in Sydney. She indicated that she has had some contact with her grandmother’s brother as she has worked with him at his sewing business.
The Applicant’s grandmother is currently very ill with cancer and has been undergoing treatment including chemotherapy for a number of years. The Applicant indicated that her grandmother needs her to remain in Australia to help care for her. It was put to the Applicant that she has not been able to assist her grandmother or care for her for some five years since she has been in either criminal detention or immigration detention. It was also put to the Applicant that her grandmother had a number of other family members in Australia who could help to care for her here. The Applicant said that the other family members did not spend too much time with her grandmother. She also said that one of her uncle’s wife’s mothers had been brought to Australia to assist in caring for her grandmother. However, the Applicant said that her uncle’s wife’s mother had to return to Vietnam shortly as her visa was soon to expire.
The Applicant indicated that her mother and father separated permanently about two years ago. However, she said that her father still lives quite close to her mother. The Applicant said that if she was required to return to Vietnam she would not live with her mother and would live in Ho Chi Minh City. She said that her mother lives in a small community which would be likely to discover that the Applicant was “deported” from Australia after serving a jail term here relating to the importation of illegal drugs. She said that this was likely to bring great shame on her family and especially her mother. She said that her mother wanted the Applicant to stay with her if she were to return to Vietnam, despite any shame that the Applicant may bring to her. However, the Applicant said she would not stay with her mother as she did not want to bring shame to her mother.
As mentioned previously the Applicant had disclosed that she had a very difficult childhood where she suffered beatings at the hands of her father. She also disclosed that she had been teased and harassed at school and by members of the Vietnamese community on the basis of her transgender identity. In one of the Applicant’s statements she had indicated that transgender people had the highest unemployment rates in Vietnam as they were not accepted by the rest of society. She claimed that most transgender people in Vietnam were forced into the prostitution industry. She did not provide any evidence for these claims. However, at the hearing when these concerns were raised directly with the Applicant, the Applicant repeatedly told the Tribunal that she did not fear harm if she had to return to Vietnam. The Tribunal asked the Applicant whether she feared that her father would harm her if she returned and she said that she did not. The Applicant indicated that she would live far away from her father in Ho Chi Minh City and where he would not find her.
The Applicant was specifically asked whether there were any reasons why she would face difficulties upon return to Vietnam. She said that she had spent the last 12 years in Australia and it would be difficult for her to adjust to life in Vietnam again. She also said that, if potential employers in Ho Chi Minh City discovered her criminal record in Australia, she may have difficulty gaining employment in Vietnam. However she conceded that it was unlikely that potential employers would discover her criminal record in Australia.
The Applicant also indicated that she is currently undertaking hormone therapy for her physical gender transition. She said that she hoped to complete that transition by undergoing gender reassignment operations. The Applicant said that the medication and hormones which she requires are not available in Vietnam and that she would have to travel to Thailand or Japan in order to obtain the medication and hormones. She also indicated that any reassignment surgery would have to occur outside Vietnam. She admitted that she would be able to obtain medication and hormones, and undergo surgery, by travelling to Thailand.
The Tribunal had before it a report prepared by the Department of Foreign Affairs and Trade entitled “DFAT country information report: Vietnam - 21 June 2017”. The report contained the following information under the heading “Sexual Orientation and Gender Identity”:
“3.37 The law does not address discrimination based on sexual orientation or gender identity. Same-sex sexual activity is legal in Vietnam provided it complies with other legislation also applicable to heterosexual activity, consensual between adults. The revised 2014 Law on Marriage and Family (effective 1 January 2015) removed a ban on same sex marriage. However, under the new law the Government does not formally recognise same sex marriages, meaning that same-sex couples are not afforded the legal protections that heterosexual married couples enjoy.
3.38 The revised Civil Code, passed by the National Assembly in November 2015, allows transgender individuals the right to change their sex, access health care, and change their gender identity on official documents if they have undergone sex re-assignment surgery. Article 36: Redefine sex, applies to intersex individuals; Article 37: Sex change, applies to individuals who want to change their sex assigned at birth. The prerequisite of sex reassignment surgery in order to access the rights has been criticised by some international NGOs; however overall the revisions are seen as a small but significant step towards recognition and acceptance.
3.39 There has been a growing official acceptance of the rights of lesbian, gay, bisexual, transgender/transsexual and intersex (LGBTI) people Vietnam. Vietnam’s first gay pride rally, Viet Pride, took place in 2012. It has since become an annual event each August; celebrated in 30 provinces in 2016, with the largest turnout in Hanoi. However, societal discrimination remains high, especially within families. Unlike other South-East Asian countries, Vietnam does not have a ‘gay scene’ in major cities, with only one known gay club in Hanoi, almost solely frequented by gay men. Young LGBTI persons frequently connect through online social platforms, such as Facebook groups and blogs.
3.40 DFAT assesses that the risk of official discrimination against LGBTI people in Vietnam is low. Although Vietnam’s legislative framework is relatively progressive, there is little awareness and understanding of alternate sexual orientations and gender identities. DFAT assesses that the risk of societal discrimination against LGBTI people in Vietnam is moderate, given the traditional and patriarchal attitudes amongst Vietnamese families and society. DFAT has been advised by credible in-country contacts of cases involving parents seeking medical treatment for their child’s homosexuality, in the form of psychiatry and prescription drugs.”
The Applicant also provided an online news article from the ABC news website dated 26 May 2016 entitled “Vietnam jails four asylum seekers over voyage to Australia despite ‘no retribution’ promise”.
That article reported that four Vietnamese citizens who had left Vietnam unlawfully by boat and who had applied for asylum in Australia, had been convicted and imprisoned on return to Vietnam after being assured by both Australian and Vietnamese officials that they would not be punished upon return to Vietnam.
The Applicant claimed that if she were allowed to remain in Australia she would never reoffend. She said that during her years in prison she had seen firsthand the negative effects of drugs have on individuals and on society. She said that she witnessed many individuals whose lives have been destroyed through taking drugs or being involved in the drug trade. She said that her partner had committed murder while he was high on methamphetamine.
The Applicant indicated that she now understood that any further involvement in drugs would result in her being returned to Vietnam. She said that she did not want to return to Vietnam as she had bad memories of her time there including the violence that she suffered at the hands of a father and the harassment she was subjected to by members of the community because of her gender identity. She indicated that society in Australia was much more accepting of transgender people than Vietnamese society. She said that in Australia she would be able to receive the hormones medication and surgery necessary to fully transition whereas in Vietnam these things would not be available. She said that she would have to seek hormones, medication and surgery in Thailand or Japan. The Applicant indicated that these matters will all give her a strong incentive to never reoffend in Australia.
The Applicant also relied heavily on the psychologist report which indicated that the Applicant presented a very low risk of reoffending.
The Applicant indicated that when she was released on parole in July 2019 she was not immediately detained by the Department and that this showed that the Department did not consider the Applicant to be a risk to the community.
The Applicant also indicated that the sentencing judge had said that the Applicant had good prospects of rehabilitation and had shown remorse. The Applicant pointed out that she only ever committed one offence and was never a part of the criminal organisation which organised for the importation of the drugs.
In addition, the Applicant also indicated that she would be on parole until 2022 and therefore would be closely monitored by parole services. She said that this would decrease the chance that she would reoffend.
The Applicant also indicated that she had attained a Diploma of Accounting and also had significant experience as a nail technician. She said that these qualifications and skills would ensure that she would gain employment soon after she was released. She said that her grandmother had business connections and would be able to organise a job for her so that she would have stable employment upon release. She also said that she would have stable accommodation as she would reside with her grandmother.
The Applicant pointed out that she had an exemplary record while in jail and detention. She said that she is completed a number of vocational courses while in detention.
Details of Offending
The Australian Federal Police Statement of Facts in relation to the Applicant’s offending indicates that the Applicant was originally charged with the importation of a commercial quantity of a border controlled drug in addition to the offence for which she was found guilty; attempting to possess a commercial quantity of a border controlled drug.
The importation charge was eventually dropped and the Applicant pleaded guilty to attempting to possess a commercial quantity of a border controlled drug.
The Statement of Facts indicates that on 6 October 2014 an international package arrived in Australia from Canada and was examined by Australian Customs and Border Protection Officers. The package was addressed to a person bearing the same surname as the Applicant.
The package contained nine 1 litre bottles of “facial toner” liquid. Each bottle returned a positive result for methamphetamine when subjected to a presumptive test.
On 7 October 2014 Australian Federal Police officers took possession of the package.
Testing of the contents of the facial toner bottles indicated that 9128.4g of that liquid was believed to contain methamphetamine.
The contents of the bottles believed to contain methamphetamine were substituted with an inert substance and the package was reconstructed for the purposes of a controlled delivery.
On 10 October 2014 and AFP officer posing as an Australia Post Courier attempted to deliver the parcel to its intended address. No one was present at the address so the officer left an Australia Post “collection card” for the package in the mailbox of the address.
The Statement of Facts indicates that on the afternoon of 10 October 2014 the Applicant attended the post office and took possession of the package from the AFP officer posing as an Australia Post employee.
The Statement of Facts indicates that the Applicant returned directly to the address for delivery recorded on the package. That evening police entered the premises and found the Applicant in possession of the package and its contents.
The sentencing judge made the following comments about the nature of the Applicant’s offending conduct:
“I will give a brief outline of the nature of your offending conduct. You were given an address by an acquaintance of yours to attend at in Brisbane to rent. This, you did on 23 September 2014. You’ve entered a room at Moorooka in the subject premises, originally for the period 24 September to 7 October 2014. Your contact gave information then about a package that was dispatched from Canada. It arrived in Australia on 6 October 2014. You had returned to Sydney after 24 September 2014, but you returned again on 30 September 2014. You waited for the package or notice that the package was going to be delivered. The Customs intercepted the package on 6 October 2014 and ascertained that the bottles that were labelled, “foot spray”, and “facial toner”, contained a liquid that contained methylamphetamine. The total net weight of the liquid was 9128 grams and the pure amount of methamphetamine in round terms, was 2.2 kilogram. The federal police substituted the contents and a controlled delivery of the package was made.
Your criminal conduct includes attending the Moorooka post office with the tracking number, in order to pick up the package. And when you were advised that it wasn’t there, you went to the Salisbury post office on two occasions on the same day and eventually on the second occasion, you received the package. That was at 4.22 pm. At 7 pm, the police executed a search warrant at the room at Moorooka. And you were found in possession of the parcel and its contents. The parcel had been opened and the contents were located in the bedroom you were occupying. You had obviously photographed the contents, I infer, to report to the person who had procured you to commit this conduct. The prosecutor had referred to you as tracking the parcel. I infer that your contact provided you with information as to the progress of the parcel, so that you would be in a position to collect it.
I consider that your conduct should be characterised as a courier. Your involvement lasted over a period of about 2 and a-half weeks. You did have second thoughts about continuing your involvement. You have been paid $1000 into your bank account to undertake the tasks asked of you. But when you indicated that you were considering withdrawing, your contact told you that she knew where your family lived, so you continued with the enterprise. When you were interviewed by police, you made up a story on 10 October 2014 that you were expecting an item to arrive from overseas that you had ordered, but that package was not it.”
The Applicant’s account of the offence was for the most part consistent with the comments of the sentencing judge and the Statement of Facts.
The Applicant indicated that she and her former partner had started a small business which failed in 2013 owing to her lack of management experience. She said that the couple had to sell the business at a loss. She indicated that her former partner was upset with her for the failure of the business. She said that they would have many arguments, that her former partner assaulted her and that an AVO was made against her former partner for her protection.

She said that she and her former partner settled back in together. She said at the time she was unable to work because she held a Bridging visa at the time without work rights. She said that as she and her partner were having a difficult time and they needed some time apart to relax and refresh. The Applicant indicated that she decided to go on holiday in Queensland for a week with a friend.
The Applicant indicated that she posted on Facebook that she was going to Queensland for a week on holiday. She said that a couple of days later, she got a phone call from an acquaintance. In a written statement she said that the acquaintance was a friend of her businesses’ former owner. At the hearing she indicated that the acquaintance had helped her sell the business. At the hearing the Applicant indicated that she had met with the acquaintance socially on several occasions.
The Applicant said that the acquaintance asked the Applicant to collect cosmetic samples arriving from overseas while she was in Queensland. In return she offered the Applicant $1000 in cash and to pay her airfares to Queensland. She said that the acquaintance told her that she was going overseas to visit her father and therefore needed someone to collect cosmetic samples while she was away. The Applicant indicated that she trusted the acquaintance because she knew that the acquaintance sold hygiene products for a grocery shop.
The Applicant indicated that the acquaintance asked her to rent a room for two weeks so that she had an address for the delivery of the cosmetic samples. The Applicant said that she resided at the address for two weeks but as the products had not arrived within that two-week period, she returned to Sydney. She said that she sent a message to the acquaintance informing her that she returned to Sydney.
The Applicant indicated that the acquaintance contacted her and asked her to return to Queensland to collect the samples as this was very important to the acquaintance. The acquaintance said that she would lose a lot of customers who were waiting for the sample to arrive if it was not collected. She said that she was willing to pay for the Applicant’s accommodation and airfare. The Applicant said that she agreed to return to Queensland to collect the samples. She said that on the way to the airport her instinct told her not to go to Queensland and that she had a strange feeling that things were wrong. She said that she gave up her aeroplane ticket and sent a text message to her acquaintance indicating that she did not wish to return to Queensland and offered to return the $1,000 in cash.
The Applicant indicated that her acquaintance called her by telephone from an unknown number. She said that acquaintance addressed her in a harsh tone and told that she must finish the job as she had already made a verbal contract with the acquaintance. She said that the acquaintance told her that if she did not go through with the job that a couple of people would visit the Applicant’s family as she knew where they lived. The Applicant took this as a threat that she or her family would be harmed if she did not go through with the job. The Applicant indicated that she was terrified by the threat and extremely worried. She said that out of fear and worry she purchased another ticket to return to Queensland. She said that she had remembered thinking “just get it done then go home and never have contact with her again”. She said that she believed that if she did not complete the job that she and her family would be in danger. She said that she was “scared out of mind” and kept thinking of the acquaintance’s threats against her and her family.
The Applicant said that couple of days after arriving in Brisbane she received a note from the post office indicating that a parcel had arrived for her to collect. She said that she walked for three hours to find the post office. She indicated that she had walked because she had expected that the package would be a small one which she would be able to carry home.
The Applicant indicated that when she collected the package from the post office she told the person from whom she collected the package (an undercover police officer) that the package was larger than she had expected. She said that the post office employee told her that there was a taxi next door which she could take to deliver the package home. She indicated that the taxi driver did not take money for the fare.
The Applicant indicated that she sent a text message to her acquaintance to let her know that she had collected the package and that she was returning to New South Wales the following morning. She said that the acquaintance asked her to open the package to photograph its contents. The Applicant indicated that she had already opened the parcel as she was curious as to its contents. The Applicant said that when she opened the parcel she believed the contents of the parcel to be “illegal” but that she did not know what the contents were or how serious her conduct was.
In her written statement she indicated that if she knew that the contents of the package were illegal drugs that she would not have become involved. She said that if she knew that the package contained drugs she would not have remained with the package at the address playing card games.
This element of the Applicant’s evidence appears to be somewhat inconsistent with her evidence during the hearing and possibly statements made to the court by her barrister during the sentencing hearing.
During the sentencing hearing, in response to a question from the judge as to whether the matter was being dealt with on the basis that the Applicant was reckless as to the contents of the package, the Applicant’s barrister appeared to suggest that the Applicant accepted that she knew that the package contained drugs. The Applicant’s barrister stated:
“Your honour, my client accepts, certainly that he knew [indistinct] drugs.”
However, it appears from the sentencing judge’s remarks that the Applicant was sentenced on the basis that she was reckless as to the contents of the package. The sentencing judge stated:
“You accept that you ought to have known what was in the package, and you were reckless as to its contents.”
That approach was consistent with the evidence given by the Applicant at the hearing before the Tribunal. At the hearing the Applicant indicated that once she returned to Sydney from Brisbane on the first occasion, and her acquaintance had threatened her family unless she returned to Queensland to collect the package, she knew that the package must have contained something illegal. She said that from that point she believed that the package contain something illegal and thought that the package may have contained illegal drugs but she did not know what kind of illegal drugs were in the package, or indeed if the package contained something illegal other than drugs. She confirmed that prior to receiving the package she believed that the package would be much smaller than it had actually been.
The Tribunal accepts that the Applicant was reckless as to the contents of the package rather than having exact knowledge that the package contained a large amount of methamphetamine.
The Applicant indicated that after she had received the package and contacted her acquaintance to confirm receipt, she booked a flight to return to New South Wales the next morning. The Applicant said that that she then contacted her acquaintance again to ask where she should leave the package as she was returning to Sydney the next day. The acquaintance gave her an address and told to leave the parcel in front of the address early the next morning. The Applicant indicated that she then relaxed and began playing a game card when the police arrived at her address.
The sentencing judge had indicated that the Applicant participated in an interview with the police on 10 October 2014. The sentencing judge indicated that during that interview the Applicant “made up a story” that she had been expecting a package, but the package that she had received was not the package that she had been expecting. At the hearing, the Applicant explained that the reason that she had told the police this on 10 October 2014 was that she had expected that the package that she was to receive would be much smaller than the one that arrived. She said that she believed so because the acquaintance had described the package as containing samples. She said that it was apparent that she had expected the parcel to be small from the fact that she had walked a long distance to the post office to collect the package as she had anticipated that she would be able to return to her address by walking with the package in hand. However, when she collected the package it was much larger than she had expected resulting in her having to use a taxi to transport the package.
At the hearing, the Applicant indicated that the police had asked her to identify the acquaintance who had organised the importation of the drugs. The Applicant indicated that she had refused to identify the acquaintance. The Applicant said that she had refused to do so as she feared that she or members of her family would be harmed by the acquaintance or her associates if she identified the acquaintance to police.
The Tribunal raised with the Applicant its concern that, if the Applicant were to remain in Australia, the acquaintance may seek for the Applicant to collect drugs for her in the future. The Applicant indicated that she had no further obligations to the acquaintance and had not been in contact with the acquaintance since she had been arrested.
The Tribunal raised with the Applicant its concern if the Applicant remained in Australia, the acquaintance may threaten to harm the Applicant or her family members in order to coerce the Applicant into receiving drugs again. The Applicant said that this would not happen as she had no outstanding obligations to the acquaintance. She said that on the last occasion she was obliged to collect the package for the acquaintance because the acquaintance had paid her $1000, paid for her airfares to Queensland and paid for the rent of the apartment where the Applicant awaited the arrival of the package.
The Tribunal expressed concern that on one view the acquaintance may consider that the Applicant had obligations to her as the police had intercepted the package which the Applicant was sent to collect and the package contained methamphetamine with a value of between $1.5 and $4.5 million. The Applicant repeated that she currently had no obligation to the acquaintance as the acquaintance had not paid her money to collect any packages. She said that this was to be contrasted with the previous occasion when the Applicant had accepted thousand dollars to receive the package.
It is worth noting that the Tribunal considers that the Applicant was, for the most part, a credible witness. Throughout her evidence, the Applicant appeared to be trying very hard to provide truthful evidence to the Tribunal. She provided thoughtful and articulate answers to often difficult questions with grace and poise. The Applicant knowingly provided answers, to a number of questions, which were against her interests. For example, she conceded that she did not fear returning to Vietnam. For the most part, she did not seek to exaggerate her claims, to provide incredible evidence or to advance unreasonable submissions. The Tribunal considers that the Applicant’s conduct before the Tribunal was commendable and noteworthy.
Applicant’s grandmother
The Applicant’s maternal grandmother had provided a statement to the Department and gave evidence at the hearing by telephone with the assistance of an interpreter in the Vietnamese and English languages.
The Applicant’s grandmother is a 77-year-old woman of Vietnamese descent who said that she has been an Australian citizen for over 30 years. She said that she has been suffering from cancer for the last seven years. The Applicant’s grandmother is currently undertaking chemotherapy for the cancer and indeed had had a chemotherapy session on the day prior to her giving evidence before the Tribunal.
The Applicant’s grandmother’s written statement was largely consistent with the evidence given by the Applicant. She described the Applicant as a happy grandchild who had a difficult childhood on account of being beaten by her father. She indicated that she was able to assist the Applicant in leaving Vietnam for Australia in order for her to study and to flee from her violent father. The Applicant’s grandmother had indicated that the Applicant had been a wonderful help within her home especially as she had become older and weakened due to her cancer.
The Applicant’s grandmother indicated that the Applicant had completed tertiary qualification in accounting and that she was a budding entrepreneur. The Applicant’s grandmother indicated the Applicant had started a business and had provided her with some financial support.
The Applicant’s grandmother indicated that the Applicant’s crime was out of character. The Applicant’s grandmother indicated that the Applicant also suffered greatly due to the time that she spent in prison and the shame she had brought on her family.
The Applicant’s grandmother indicated that if the Applicant were allowed to remain in Australia she would be able to live with her and that she would be able to support the Applicant financially.
Communication with the Applicant’s grandmother during the hearing was difficult. She is an elderly woman who was speaking through an interpreter and had, only the day before she gave evidence, undergone chemotherapy.
There also appears to have been some concerns with the interpreter. The Applicant, who speaks Vietnamese fluently, raised her concerns about the interpretation with the Tribunal when they arose. The Tribunal would raise any concerns with the interpreter and clarify its questions until the Applicant was satisfied that any issues with the interpretation had been remedied.
The Applicant’s grandmother indicated that she remembered providing a character reference for the Applicant in early 2018 but could not really remember the contents of the statement. The Applicant’s grandmother indicated that she remembered someone assisting her with creating the statement but could not remember who assisted her. She said that she told the assistant what she wanted written and that the assistant wrote what she had said.
The Applicant’s grandmother indicated that the Applicant was her grandson and said that he was gay. She said that the Applicant’s father would beat the Applicant from time to time. The Applicant’s grandmother indicated that the Applicant lived with her for some time after she first arrived in Australia. The Applicant’s grandmother indicated that the Applicant then moved out and got married. The Applicant’s grandmother indicated that even after the Applicant got married that the Applicant would visit her every two or three days as well as making regular telephone contact.
The Applicant’s grandmother indicated that the Applicant had been in jail for about five years. However, she said that she did not initially know that the Applicant had been imprisoned as her family did not inform her for some years after she was imprisoned.
The Applicant’s grandmother said that after the Applicant was imprisoned she would maintain contact by telephone. However, the Applicant’s grandmother indicated that she could not remember how often she would speak with the Applicant during that time. She said that recently she spoke with the Applicant by telephone every day.
The Applicant’s grandmother indicated that if the Applicant were allowed to remain in Australia that the Applicant would live with her and help to care for her. She indicated that the Applicant would be able to assist her around the house and help to attend medical appointments. She also said that she would help the Applicant secure employment. The Applicant’s grandmother indicated that her daughter-in-law was running a new beauty salon and that the Applicant would be able to work for her. The Applicant’s grandmother indicated that she had spoken with her daughter-in-law about securing employment for the Applicant if she were allowed to remain in Australia.
The Applicant’s grandmother indicated that she had other family members in Sydney and that her daughter-in-law was currently helping to care for her. However, she said that her daughter-in-law would be returning to Vietnam in the near future.
The Psychologist
The Applicant had provided the Department with a copy of a report dated 9 May 2017 prepared by a clinical psychologist (“the Psychologist”) regarding the Applicant’s mental health, recommended treatment and risk of reoffending. This report was prepared at the request of the Applicant’s criminal lawyers for consideration by the sentencing judge. The Psychologist who prepared the report did not appear before the Tribunal.
The report relevantly provided:
“When considering [Applicant’s name]’s offending conduct, this appears to have occurred in the context of a number of destabilising factors including relationship distress with spouse, victimisation of domestic violence, unemployment and poor social companionship. It is plausible that the quality of his intimate relationship at the time affected his functioning in behavioural, cognitive and affective domains (e.g. conflict resolution difficulty, negative attributions, sadness, apathy) which may have impaired his judgement and made him vulnerable to participate in the offending conduct. It is also possible that [Applicant’s name]’s abusive experiences within his romantic relationships reopened old woman’s of his past abuse and neglect leading to further adverse outcomes. It appears that at the time of his offending conduct, [Applicant’s name] displayed low self-control which resulted in him pursuing his own self-interests (e.g. money offered, paid airline ticket to Sydney) without consideration of the potential long-term consequences. Furthermore, it seems that [Applicant’s name]’s naivety combined with the presence of poor cognitive judgements or decision errors and perceived threats of harm to his family allowed him to be easily persuaded and agreeable to engage in the offending conduct.
The Psychologist came to the following conclusions in relation to the Applicant’s risk of reoffending:
“With respect to [Applicant’s name]’s overall risk of re-offending, this appears to be VERY LOW when assessed with the LS/CMI. From what he revealed during the clinical interview, [Applicant’s name] identified a very limited number of risk factors for general reoffending. These were in the areas of education and employment (e.g. currently employed), family and marital (e.g. non-rewarding parental), leisure and recreation (e.g. absence of recent participation in an organised activity), and companions (e.g. some criminal acquaintances).”
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 11.1(1) of the Direction provides that there is a low tolerance for visa Applicants who previously engaged in criminal or other serious conduct. Paragraph 11.1(1) of the Direction also provides that decision-makers should give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 11.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:
a)   The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b)   The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)   The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence under section 197A of the Act;
e)   The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
f)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
g)   The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
h)   The cumulative effect of repeated offending;
i)    Whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
j)    Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

The nature of the Applicant’s offending has been described in detail above. It involved her recklessly attempting to possess a commercial quantity of an unlawfully imported border controlled drug.
The offence which the Applicant has committed can not be described as a violent or sexual crime. The offence was not of a violent nature and was not committed against women or children. The offence was not committed against vulnerable members of society or Government officials or representatives. However, the Tribunal notes that the facilitation of the importation and distribution of illicit drugs, where successful, will often result in great harm to vulnerable drug addicted members of our community including our youth.
The Applicant’s offence was not committed while she was in immigration detention, during an escape from immigration detention, or after an escape from immigration detention.
The Applicant fails the character test as she has a substantial criminal record for the purposes of paragraph 501(6)(a) when read with paragraph 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of at least 12 months. She was not found to fail a subjective limb of the character test and was not determined to fail the character test pursuant to paragraph 501(6)(c) of the Act.
The Applicant pleaded guilty to, and was convicted of, one count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug. The quantity of methamphetamine which the Applicant attempted to possess was 2.2 kg with a street value of between $1.5 million and $4.5 million. As pointed out by the prosecutor during the sentencing hearing, a commercial quantity is the highest quantity recognised by the law and the Applicant sought to possess approximately three times the threshold level for a commercial quantity (750g of methamphetamine).
The offence itself is an extremely serious offence which attracts a maximum sentence of life imprisonment. The Applicant was sentenced to 8 years imprisonment with a non-parole period of three years and nine months. The Tribunal considers that the significant sentence imposed by the court indicates that the Applicant’s conduct was very serious.
During the sentencing hearing, the sentencing judge stated:
“…being involved in the delivery of a large quantity of methamphetamine has the potential to hurt many people, and, I mean that’s why the maximum penalty is life imprisonment…”
In passing sentence, the sentencing judge stated:
“…even though you don’t have a criminal history, because of the serious offence you have committed… only a sentence of imprisonment is appropriate for this offence committed by you, even having regard to your circumstances.
…
your offending had the potential to hurt many people who, in our society, are affected not only by the use of illicit substances, but the crime that is associated with the use of illicit substances.”
It does not appear that the Applicant has provided false or misleading information to the Department such as to justify any significant increase in an assessment of the seriousness of the offending or its nature. However, the Tribunal initially had some concern that the Applicant may have provided misleading information to the Australian Federal Police during the interview with the Applicant on 10 October 2014 in which the Applicant indicated that the package that she received was not the package that she had been expecting. However, the Tribunal is willing to accept the Applicant’s explanation that she had said this to police as she had been expecting the package that she received to be a lot smaller than it was. Therefore, the Tribunal is willing to accept that the Applicant did not provide false information to the police in this regard.
The Tribunal has also taken into account in making a determination as to the seriousness of the Applicant’s conduct that the Applicant did not know for a certainty that the package contained methamphetamine. The Tribunal also accepts that she did not know the quantity of the drugs in the package. The Tribunal accepts the Applicant’s evidence that she believed that the package contained drugs or some other illegal substance. The Tribunal agrees with the sentencing judge’s comments that the Applicant ought to have known what was in the package and was reckless as to its contents.
The Tribunal accepts that the Applicant’s primary motivation for attempting to receive the package was that she considered that her acquaintance had threatened to harm her and/or her family members if she did not do as her acquaintance directed. The Tribunal has considered this in its assessment of the seriousness of the Applicant’s conduct.
After careful consideration, including consideration of the matters listed in paragraph 11.1.1(1) of the Direction and in particular this significant sentence of imprisonment imposed on the Applicant for attempting to possess a large amount of methamphetamine, the Tribunal considers that the Applicant’s conduct is very serious.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 11.1.2(1) of the Direction provides that a decision-maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Paragraph 11.1.2(1) of the Direction provides that some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 11.1.2(2) provides for the principle that Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
In considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 11.1.2(3) of the Direction cumulatively. They are:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
(ii)evidence of any rehabilitation achieved by the time of the decision, giving weight to the time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
(iii)the duration of intended stay in Australia.
Paragraph 11.1.2(4) of the Direction provides a decision-maker should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
In many cases the harm to the Australian community or members of the Australian community should an Applicant reoffend in a similar manner will be obvious. This is especially so if an Applicant has previously committed violent offences. For example, if an Applicant has previously been convicted for assault occasioning actual bodily harm and they were to reoffend in a similar manner, the result would be that another member of the Australian community would be inflicted with actual bodily harm.
However, in a case such as the present it will not always be immediately apparent what the harm to the Australian community, or individual community members, may be as a result of future offending. In such cases it will often be insufficient for the Respondent to simply assert harm in his written contentions without providing any evidence to support those assertions. Whereas in some cases harm to the community will be obvious, and in others it may be appropriate, although not ideal, for Tribunal members to, in effect, take judicial notice of commonly accepted matters, in cases such as this one dealing with the potential impact of illicit drugs on the community, it is best practice for the Respondent to put on some readily available evidence of the deleterious effects of illicit drugs to individuals or the community. This is because decision makers are required by paragraph 11.1.2(3)(a) of the Direction to have regard to “The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct”.
I note that I have made these comments previously: see for example QQYJ and Minister for Home Affairs (Migration) [2019] AATA 770.
In this case there is no direct evidence of the harmful impact of illicit drugs on the community. However, the sentencing judge made some comments on the harm of illicit drugs to the community. During the sentencing hearing, the sentencing judge stated:
“…being involved in the delivery of a large quantity of methamphetamine has the potential to hurt many people, and, I mean that’s why the maximum penalty is life imprisonment… .”
In passing sentence, the sentencing judge stated:
“Your offending had the potential to hurt many people who, in our society, are affected not only by the use of illicit substances, but the crime that is associated with the use of illicit substances.”
In Trang and Minister for Home Affairs (Migration) [2019] AATA 4087, Deputy President Boyle outlined a number of observations made by Judges and Members of the Tribunal regarding the deleterious effects of the drug trade. Deputy President Boyle stated at [65] to [67]:
“65. … the harm that would be caused if the Applicant were to repeat his offending behaviour, in particular his drug dealing, is obvious and serious. The Tribunal adopts Groves DCJ’s observation cited at [43] above that:
…exposing other people in the community to hard drugs, drugs ruining other people’s lives just as you have ruined and wasted your own life by reason of your addiction to these drugs.
and agrees with Stavrianou DCJ’s observation cited at [48] above that:
Methylamphetamine is at the top of the tree in terms of prohibited drugs.
66. A very thorough and useful analysis of the harm that is caused to individuals and to the community by drugs, in particular methylamphetamine, is contained in Senior Member Groom’s decision in VPKY and Minister for Home Affairs [2019] AATA 352 at [18]-[20].
67. Member Eteuati in Lansdowne and Minister for Home Affairs [2019] AATA 2448 at [107]-[109] observed:
107.The deleterious effects of drug trafficking on the community are well-known and often stated. Australia’s National Drug Strategy 2017-2026, referred to by the Respondent, notes that:
“Over the last five years there has been an increase in the availability and purity of methamphetamine... As a consequence, states and territories are reporting an increase in the harms associated with its use including increased presentations to drug treatment services, ambulance attendances and presentations/admissions to Australian public hospitals.”
108. In Ngo v The Queen [2017] WASCA 3, the Court of Appeal of the Supreme Court of Western Australia (Buss P with whom Mazza JA agreed) stated that the victim of trafficking or attempted trafficking in illicit drugs was the Australian community generally and that:
“The illicit drug trade is a scourge. It inflicts very significant damage on the people who consume the drugs. Also, the deleterious effects of illicit drug consumption extend to the families, friends and associates of the consumers and society generally.”
109. The Respondent in his written submissions referred to the Tribunal’s decision in SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020 (“SCJD”). In SCJD, Senior Member Cameron stated the following in relation to the harmful effects of drug trafficking at [80] to [83]:
“The seriousness of drug trafficking is well known. It has been commented on by several of the trial judges before whom the Applicant has come.
The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.”
The Tribunal finds that if the Applicant were to re-engage in criminal conduct similar to her drug related offence, it is likely that the nature of the harm to victims would be that they would suffer from the harmful physical and mental effects of illicit drug use mentioned above and potentially of drug related crime.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
As mentioned above, the Psychologist who provided a pre-sentencing report for the Applicant came to the following conclusions in relation to the Applicant’s risk of reoffending:
“With respect to [Applicant’s name]’s overall risk of reoffending, this appears to be VERY LOW when assessed with the LS/CMI. From what he revealed during the clinical interview, [Applicant’s name] identified a very limited number of risk factors for general reoffending. These were in the areas of education and employment (e.g. currently employed), family and marital (e.g. non-rewarding parental), leisure and recreation (e.g. absence of recent participation in an organised activity), and companions (e.g. some criminal acquaintances).”
The sentencing judge made the following remarks which are relevant to the Applicant’s risk of reoffending:
“You take full responsibility for your criminal conduct. I’ve read the letter that you’ve written to me and I sincerely hope that the faith that you expressed in that letter will sustain you through the balance of your time in custody. It seems from your initial interview with police, through your interview with the psychologist, to the letter that you’ve now placed before the court, that you have increased your insight into the criminal nature of your conduct, and understand that you let your vulnerable state allow you to be used by other people for their criminal purposes. It is likely that you will never offend as a criminal again, but I will observe that that comment can be made by others who have found themselves in the same position as you, allowing their vulnerability to be used by others to commit serious criminal offending in the nature of either importing or attempting to possess large quantities of illegal drugs.
…
I consider that your conduct should be characterised as a courier.
…
You did have second thoughts about continuing your involvement.
…
After your arrival in Australia, you’d been in a relationship with a man. That relationship was attended by violence, and it ended. At the time that your involvement in this activity was procured, you had been involved in a field business and you owed money. You were on a bridging visa that meant you could not work unless you permission to do so, and you had applied for that permission but it had not been received, when you agreed to the request of your contact to be involved in picking up this package. I think it’s fair to characterise you as vulnerable.
…
But for your personal circumstances, I would have been inclined to require you to serve at least 50 per cent or a little more of the sentence.
…
I accept that you have now shown remorse for your offending.
…
There has not been great cooperation with law enforcement agencies.
…
You have good prospects of rehabilitation. I can conclude that both from what you have conveyed to your lawyers, the letter to the court, and also the psychological report.”
[my emphasis]
The Tribunal accepts the Applicant’s evidence that during her years in prison she had seen firsthand the negative effects of illegal drugs have on individuals and on society. That includes the impact of her lengthy imprisonment on her, a transgender woman in a male prison, and on the victim of her partner who was murdered when the Applicant’s partner was high on methamphetamine.
The Tribunal also accepts that the Applicant knows that any further offending is likely to result in her having to return to Vietnam. The Tribunal accepts that the Applicant has bad memories of her time there including the violence that she suffered at the hands of her father and the harassment she was subjected to by members of the community because of her gender identity. The Tribunal accepts that the Applicant considers that Australian Society is much more accepting of transgender people than Vietnamese society. The Tribunal accepts that the Applicant’s physical transition would be much easier if she remained in Australia where the hormones, medication and surgery necessary to fully transition are readily available. The Tribunal accepts that these things would not be available in Vietnam and if the Applicant were required to return to Vietnam, the Applicant would have to travel to Thailand or Japan to seek hormones, medication and surgery. The Tribunal accepts that these matters would provide a strong disincentive for to commit further crimes in Australia.
The Tribunal has considered the Applicant’s submission that the fact that the Department did not immediately detained her upon her release from prison indicated that the Department did not consider the Applicant to be a risk to the community. However the Tribunal does not accept the submission. When the Applicant was released from prison in July 2019, she did not hold a visa, was therefore an unlawful noncitizen and was required to be detained in immigration detention: see section 189 or the Act. Therefore, officers of the Department did not have a discretion not to detain the Applicant on the basis that they believed that she was not a risk to the community. Indeed, as soon as the Applicant attended an office of the Department to apply for a Bridging visa she was detained as required by law. The Tribunal considers that in those circumstances, the Department’s failure to detain the Applicant immediately upon her release from prison was an oversight. In any event, it is for the Tribunal to determine for itself the risk that the Applicant may pose to the community.
The Tribunal accepts that the Applicant is subject to parole conditions until 2022. The Tribunal accepts that the fact that she is subject to parole conditions including regular monitoring decreases the chance that she will reoffend in that period.

The Tribunal accepts that the Applicant has attained a Diploma of Accounting and also had significant experience as a nail technician. The Tribunal accepts that these skills and qualifications, in addition to her grandmother’s assistance in securing a job with the grandmother’s daughter-in-law, mean that it is very likely that the Applicant will gain employment shortly after release if she is released from detention. The Tribunal also accepts that the Applicant will have secure accommodation with her grandmother upon release.
The Tribunal accepts that the Applicant has completed our number of vocational courses while in detention. The Tribunal accepts that the Applicant has an exemplary record of conduct while in jail and in immigration detention.
The Tribunal has also considered the Applicant’s commendable conduct before the Tribunal, her sincere remorse and the significant rehabilitation she has accomplished thus far.
The Tribunal has taken into account that if the Applicant’s is granted a Bridging visa, that visa will only allow the Applicant to remain in the community for a limited period of time, that is, until the final determination of her substantive Partner visa application. The limited time that the Applicant will spend in the community as the holder of a Bridging visa may limit the opportunity for the Applicant to reoffend while holding the Bridging visa.
The Tribunal has also taken into account the character reference provided by the Applicant’s grandmother and her evidence given at the hearing. The Tribunal has considered that while the visa application which has been refused is for a Bridging visa, the Applicant also wishes to be granted a Partner visa and to remain in Australia permanently.
The Tribunal considers that there are some compassionate reasons for the grant of the Bridging visa. The most compelling being for the Applicant to be able to remain in Australia for a relatively short period of time until her Partner visa application is determined so that she may spend some time with her ailing grandmother in the community before her Partner visa application is determined.
Ultimately, the Tribunal is willing to accept the only expert evidence before the Tribunal, that of the Psychologist, that the Applicant represents a very low risk of reoffending.
However, the Tribunal considers that the very low risk of reoffending presented by the Applicant is not an insignificant risk. That is because of the very serious nature of the offence and the potential harm to a great number of vulnerable members of the Australian community if the Applicant were to reoffend. In addition, the Tribunal has a real concern that the acquaintance who organised for the Applicant to collect the package containing the methamphetamine, may again seek for the Applicant to act as a courier by threatening her, or members of her family, with serious harm.
The Applicant was so concerned about potential harm to herself and her family that she agreed to receive the package even after she strongly suspected the package contained drugs or other illegal substances. In addition, the Applicant was so terrified of the acquaintance that she refused to cooperate with police by identifying the acquaintance. As she was legally represented it is likely that she would have been advised that her cooperation with the police in apprehending the person who organised for the drugs to be imported into Australia may well have resulted in a significant reduction to her sentence of imprisonment. Indeed, the sentencing judge, when imposing the sentence, remarked on the Applicant’s lack of cooperation with enforcement agencies.
It is clear that the Applicant is close with a number of her family members in Australia and is particularly close to her grandmother. The Tribunal accepts that while she was in prison the Applicant would have telephone contact with her grandmother every week and that she has been in telephone contact with her grandmother almost every day since she has been in immigration detention.
The Applicant has indicated that there is no risk that her acquaintance would seek for her to act as a drug courier again. She said that she has had no contact with the acquaintance since the day she was arrested. She also indicated that she had no obligation to the acquaintance as, unlike on the previous occasion, she has not been paid any money by the acquaintance to act as a drug courier.
The Tribunal is unconvinced that there is no risk that the Applicant’s acquaintance would seek for her to act as a drug courier again. While the Applicant has not currently been paid by the acquaintance to act as a drug courier, it is possible that the acquaintance may feel that the Applicant is obligated to work for her on account of the large amount of drugs of high-value which were seized when the Applicant last acted as a drug courier for the acquaintance. Further, the acquaintance knows that the Applicant is susceptible to threats against her family. While the Tribunal does not doubt that the Applicant currently has no intention of ever acting as a drug courier again, the Tribunal is not convinced that there is no risk that the Applicant would not act as a drug courier again in order to protect those who she loves and cares for.
The Tribunal is also concerned that if the Applicant were to refuse to act as a drug courier for the acquaintance, that it is quite possible that the acquaintance would act on her threats and harm members of the Applicant’s family. Therefore, if the Applicant’s acquaintance were to seek to coerce the Applicant into acting as a drug courier again, there exists a real possibility that, whether or not the Applicant agrees to the acquaintance’s demands, members of the Australian community will be put at risk of harm. That is, if the Applicant agrees to act as a drug courier this could result in harm to members of the Australian community by the consumption of harmful illegal drugs or drug related crime. If the Applicant refuses to act as a drug courier, this could result in physical harm being done by the acquaintance or her associates to members of the Applicant’s family, who are members of the Australian community. In short, the Tribunal remains concerned that the Applicant’s continued presence in Australia, even if that were for a short period, may put members of the Australian community at risk.
The Tribunal notes that it is unclear from the Psychologist’s report whether she has assessed the Applicant’s risk of recidivism by taking into account the concerns that I have mentioned above relating to the possibility that the Applicant’s acquaintance may use coercion to seek for the Applicant to act as a drug courier again.
The Tribunal understands that the concern that it is raised in this regard is speculative. However, much of the consideration of the risk that an applicant will reoffend involves a high degree of speculation. The Tribunal appreciates that the risk that the Applicant may be coerced to act as a drug courier again may well be quite low. However, given that the acquaintance has coerced the Applicant into acting as a drug courier by threatening to harm her family in the past, the Tribunal considers that there is a not an insignificant chance that she will do so again in the future.
As the Tribunal considers that there is a real possibility that the Applicant’s acquaintance could use coercion to seek for the Applicant to act as a drug courier again, and considering the potential harm to a great number of vulnerable members of the Australian community if the Applicant were to reoffend, the Tribunal considers that the risk that the Applicant presents to the community, while very low, is still significant.
Conclusion: Primary Consideration A
The Tribunal has found that Applicant’s conduct was very serious and the nature of the conduct was that she recklessly attempted to possess a commercial quantity of an unlawfully imported border controlled drug.
The Tribunal has found that if the Applicant were to re-engage in criminal conduct similar to her drug related offence, it is likely that the nature of the harm to victims would be that they would suffer from the harmful physical and mental effects of illicit drug use mentioned above and potentially of drug related crime.
The Tribunal has taken into consideration the principle that Australia has a low tolerance of any criminal conduct by visa applicants. The Tribunal has also considered that it is likely that, if the Applicant was successful before the Tribunal, the Applicant will remain in Australia until the proceedings relating to her application for a Partner visa are ultimately determined.
After giving thought to this primary consideration, the Tribunal concludes that the protection of the Australian community primary consideration weighs in favour of refusal of the Applicant’s Bridging E visa application.
The Tribunal attributes significant weight to the primary consideration of the protection of the Australian community in favour of refusal of the Applicant’s Bridging visa application.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 11.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is, or is not, in the best interests of a child who may be affected by cancellation of the Applicant’s visa.
Neither party has argued that this consideration is relevant in the current matter and no issue arises on the material before the Tribunal. In these circumstances the Tribunal places no weight on this consideration.
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 11.3(1) of the Direction states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.”
How are those expectations determined?
The decisions of Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500 establish that:
·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community;
·it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations; and
·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to Act on that statement.
These principles were confirmed very recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction, including the principles in paragraph 6.3(5) and paragraph 6.3(7) of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law. This expectation was breached when the Applicant committed a serious drug related offence in 2014. The Tribunal has considered the principle that the Australian community expects the Australian government should refuse entry to non-citizens if they commit serious crimes in Australia. The Tribunal has taken into account the principle that a noncitizen who has committed a serious crime should generally expect to be denied the privilege of staying in Australia. The Tribunal has also taken into account that Australia has a low tolerance of any criminal conduct by visa applicants.
Against these factors, the Tribunal has considered that for much of the Applicant’s time in Australia she has made a positive contribution to the Australian community.
The Tribunal has also considered that the Applicant’s family members in Australia, and in particular her grandmother, will be severely negatively affected if the Applicant’s Bridging visa application was refused.
Conclusion: Primary Consideration C
Overall, given the serious nature of the Applicant’s conduct, the not insignificant chance that she will reoffend, and notwithstanding the negative effects on the Applicant’s family members in Australia if the Applicant’s visa was refused, the Tribunal finds that the consideration of expectations of the Australian community weighs in favour of the exercise of the discretion to refuse the Applicant’s visa application.
The Tribunal places significant weight on this consideration in favour of the exercise of the discretion to refuse the Applicant’s Bridging visa application.
OTHER CONSIDERATIONS
Paragraph 12 of the Direction provides for other considerations. They include but are not limited to:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
International non-refoulement obligations and harm or hardship to the Applicant on return
Paragraph 12.1 of the Direction provides:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an Applicant for a protection visa).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
(5)If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class W R) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.
In Omar v Minister for Home Affairs[2019] FCA 279 (“Omar”), Mortimer J found that it will be a failure to carry out the task required under the Act if a decision maker fails to give proper consideration to an Applicant’s representation that he or she is a person in respect of whom Australia has non-refoulement obligations. Her Honour found that the decision maker will fail to do so if the decision maker considers that, where it is open to an Applicant to apply for Protection visa, it is unnecessary to consider Australia’s international non-refoulement obligations.
In AXT19 v Minister for Home Affairs[2019] FCA 1423 (“AXT19”) Logan J found that it will not be a jurisdictional error for a decision maker to fail to consider whether Australia has non-refoulement obligations in respect of an Applicant where it is open for the Applicant to make an application for a protection visa. Logan J found that the decision in Omar was inconsistent with the Full Court’s decision in Minister for Immigration and Border Protection v Le[2016] FCAFC 120 (“Le”) and was wrongly decided. His Honour stated at [27]:
“It is not possible, in my respectful view, to reconcile the observations quoted from Omar with the Full Court’s judgment in Le, quite apart from the passing observation made in DOB18 at [193]. The effect of Le, in my view, which does not appear to have been cited, much less pressed in argument, before her Honour in Omar, is that Omar is clearly wrong... “
In, Le the Full Court of the Federal Court (Allsop CJ, Griffiths and Wigney JJ) found that Australia’s non-refoulement obligations are not a mandatory relevant consideration in the exercise of the discretion to cancel a visa in section 501(2) of the Act in circumstances where it remained open to an Applicant to make an application in Australia for a Protection visa.
The weight of Federal Court authority at present supports the conclusions reached by Logan J in AXT19.[1] However, the reasoning of Mortimer J in Omar has found support in the recent decision of Moshinsky J in DGI19 v Minister for Home Affairs [2019] FCA 1867.
[1] Anderson J discussed many of the recent Federal Court decisions which have considered this issue in GBV18 v Minister for Home Affairs[2019] FCA 1132.
As matters stand, there are currently conflicting authorities in the Federal Court as to whether it will be an error for a decision-maker not to make an assessment as to whether an Applicant is a person in respect of whom Australia has non-refoulement obligations in circumstances where it is open for an Applicant to apply for a Protection visa. It was thought that this issue would be settled by a five-member bench of the appellate jurisdiction of the Federal Court in Minister for Home Affairs v Omar [2019] FCAFC 188 which was an appeal by the Minister from the decision of Mortimer J in Omar.
In the Omar appeal, a Full bench of the Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) found that they did not need to decide the issue. However, the result of the Full Court decision appears to be that the answer to the question as to whether a it will be an error for a decision-maker not to make an assessment as to whether an Applicant is a person in respect of whom Australia has non-refoulement obligations in circumstances where it is open for an Applicant to apply for a Protection visa, appears to be of less significance than may have previously been thought.

In short, this is because the Full Court has found that a decision-maker must give meaningful consideration to clearly articulated claims of harm made by the Applicant including those claims, which if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. This will include a decision-maker making findings of fact as to whether the feared harm is likely to eventuate by addressing the claims in the way they have been expressed by the Applicant.
The Full Court emphasised the distinction between the harm, or the risk of harm and hardship that a person claims and the assessment of whether a person is one in respect of whom Australia owes non-refoulement obligations. The assessment of whether a person is one in respect of whom Australia owes non-refoulement obligations will depend on a decision maker’s findings in relation to the harm or hardship that an Applicant may face if returned.
The Full Court found that a decision-maker must give meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm claimed, independently of a claim concerning Australia’s non-refoulement obligations. There has to be active intellectual engagement with the applicant’s claims relating to the risk of harm. The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed.
The Full Court found that a decision-maker must do more than simply acknowledging or noting that claims of harm have been made. Depending on the nature and content of the representations, the decision-maker may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations.
The Tribunal considers that the result of the Full Court decision in the Omar appeal is that decision-makers must engage properly with, and consider all, claims of harm made by an Applicant including those claims which, if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. Engaging properly with claims of harm made by an Applicant may require a decision-maker to make specific findings of fact including whether the feared harm is likely to eventuate. The claims of harm must be addressed in accordance with the way that they have been expressed by the Applicant.
At the hearing the Applicant repeatedly told the Tribunal that she did not fear harm if she had to return to Vietnam. The Tribunal asked the Applicant whether she feared that her father would harm her if she returned and she said that she did not. The Applicant indicated that she would live in Ho Chi Minh City, far away from her father so that he would not find out where she was. Indeed, when specifically asked by the Tribunal whether the Applicant would apply for a Protection visa to avoid any harm in Vietnam, the Applicant said that she would not, indicating that she did not fear harm in Vietnam.
Notwithstanding that the Applicant abandoned any reliance on Australia’s international non-refoulement obligations or that she fears no harm if she returned to Vietnam, the Tribunal has considered these matters out of an abundance of caution. The Tribunal has also considered any hardship that the Applicant claims that she may face if she returned to Vietnam.
The Tribunal is not satisfied that there is any real risk that the Applicant will suffer significant harm or a real chance that the Applicant will suffer serious harm if she returns to Vietnam. The Tribunal accepts the Applicant’s evidence that she was beaten frequently by her father as a child when they were living in the same household. However, this happened in circumstances where the Applicant was a child being beaten by an adult in the family home. The Applicant is now an adult and has told the Tribunal that she will not live in the area where her father resides but rather will reside in Ho Chi Minh City, apart from any family members.
In reaching its conclusion that there is no real risk of the Applicant suffering significant harm, the Tribunal has considered the assessment of the Department of Foreign Affairs and Trade that:
“DFAT assesses that the risk of official discrimination against LGBTI people in Vietnam is low. Although Vietnam’s legislative framework is relatively progressive, there is little awareness and understanding of alternate sexual orientations and gender identities. DFAT assesses that the risk of societal discrimination against LGBTI people in Vietnam is moderate, given the traditional and patriarchal attitudes amongst Vietnamese families and society.”
In reaching its conclusion, the Tribunal has also placed significant weight on the Applicant’s lack of any subjective fear of harm if she were to return to Vietnam. As the Applicant was born and raised in Vietnam she is well placed to make a determination as to whether she is likely to face harm there.
The Tribunal does not accept the Applicant’s claims that transgender people have the highest unemployment rates in Vietnam or that most transgender people in Vietnam were forced into the prostitution industry. There is simply insufficient evidence before the Tribunal to responsibly make such findings.
The Tribunal accepts that as the Applicant has been in Australia for the last 12 years that it will be difficult for her to readjust to life in Vietnam. The Tribunal also accepts that if potential employers in Ho Chi Minh City discovered her criminal record in Australia that she may have difficulty gaining employment in Vietnam. However, the Tribunal finds that it is unlikely that potential employers would discover her criminal record in Australia. This was accepted by the Applicant during the hearing.
The Tribunal accepts that it will be easier for the Applicant to transition physically in Australia than in Vietnam. The Tribunal accepts that the hormones, medication and surgery necessary for her transition is unavailable in Vietnam and that she would have to travel to Thailand or Japan to obtain these things.
The Tribunal accepts that the Applicant was teased and harassed at school and by members of the Vietnamese community on the basis of her transgender gender identity. The Tribunal accepts that the Applicant considers that Australian society is more tolerant of transgender people than Vietnamese society. The Tribunal accepts that if the Applicant returned to Vietnam there is a real risk that she would be teased or harassed by members of the community on the basis of the transgender identity. However, the Tribunal does not accept that this treatment would constitute serious harm or significant harm as contemplated in the Act or at international law.
The Tribunal does not accept that there is a real risk that the Applicant will suffer significant harm or a real chance that the Applicant would suffer serious harm if she were to return to Vietnam. Indeed, the Tribunal is not satisfied that there is a real risk that the Applicant would suffer any physical harm if she were to return to Vietnam. Accordingly, the Tribunal also finds that Australia does not have international non-refoulement obligations in respect of the Applicant.
In these circumstances, the consideration of Australia’s international non-refoulement obligations does not weigh in the Applicant’s favour in this matter. It is a neutral consideration.
However, the Tribunal accepts that the Applicant may well suffer harassment and teasing, that she would find it difficult to readjust to life in Vietnam, that it would be more difficult for her to transition physically in Vietnam, that she would dearly miss her family in Australia, and especially her grandmother and that she would be upset that in all likelihood she would never be able to return to Australia, a country where she has resided for the last 12 years.
In relation to the ABC news article provided by the Applicant, the Tribunal considers that this article does not assist the Applicant. First, some time has passed since the article was published in May 2016. Second, the article involves Vietnamese citizens who left Vietnam unlawfully by boat. The applicant arrived lawfully on a Student visa by aeroplane. Third, the people mentioned in the article applied for asylum in Australia. The applicant has not applied for a protection visa in Australia and has indicated that she does not intend to apply for a protection visa in Australia as she does not fear harm in Vietnam.
While the Tribunal does not consider that the Applicant will suffer any physical harm on return to Vietnam, as outlined above, the Tribunal considers that the Applicant will suffer hardship and will be severely adversely affected if she is required to return to Vietnam.
The Tribunal considers that the non-specified consideration of hardship to the Applicant weighs in favour of setting aside the decision to refuse the Applicant a Bridging visa. The Tribunal places significant weight on this consideration in the Applicant’s favour.
Impact on family members
Paragraph 12.2 of the Direction provides:
“Impact of visa refusal on immediate family members in Australia, whether those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.”
The Applicant has a grandmother in Australia. She also has two uncles and three cousins whom she says she is close.
If the decision to refuse the Applicant a Bridging visa is affirmed, she will remain an unlawful noncitizen and is likely to be removed from Australia as soon as reasonably practicable: see section 198 of the Act.
The Tribunal considers that visa refusal, and the consequent removal of the Applicant from Australia will have a significant negative impact on the Applicant’s family members in Australia and in particular on her ageing, and ailing, grandmother.
The Applicant and her grandmother clearly love each other dearly. They currently speak with each other on the telephone every day. Even when the Applicant was in criminal custody they would speak once a week. The Applicant’s grandmother facilitated her arrival in Australia to help her to gain an education here and to remove her from a family environment where she was being beaten by her father. The Applicant lived with her grandmother for some years after her arrival here. After the Applicant moved out of her grandmother’s home she continued to have regular contact with her grandmother through frequent visits and telephone calls.
The Applicant’s grandmother is 77 years old and is frail owing in particular to the cancer from which she suffers. She requires assistance at home and when she makes regular trips to seek medical attention. At present, the mother of her daughter-in-law provides her with assistance, but the Applicant’s grandmother indicated that the mother of her daughter-in-law was required to leave Australia in the near future. The Tribunal has taken into consideration that the Applicant’s grandmother has a number of other family members in Australia who can assist her, or organise for her to be assisted, including two of her sons. The Tribunal has also taken into consideration that the Applicant has not been able to provide any assistance to her grandmother since she was arrested in October 2014, some five years ago. The Tribunal has also considered that if the Applicant were allowed to remain, in addition to providing her grandmother with assistance at home, she may be able to provide some financial assistance to her grandmother which she is less likely to be able to provide if she were to return to Vietnam.
The Tribunal has also considered that the Applicant has a New Zealand citizen partner in Australia who is currently serving a sentence of imprisonment for murder. The Applicant has indicated that her partner will be eligible for parole in 2021 and will then be removed from Australia. While New Zealand citizens in Australia usually hold class TY subclass 444 visas allowing them to remain permanently in Australia, the Tribunal considers that it is very likely that the Applicant’s partner’s visa has been cancelled because of the serious crime that is committed or that it will be cancelled prior to his release on parole in 2021. Therefore, the Tribunal does not consider that the Applicant’s partner is a person that has the right to remain in Australia indefinitely.
The Tribunal finds that this consideration weighs in favour of setting aside the decision to refuse the Applicant a Bridging visa. The Tribunal places significant weight on this consideration in the Applicant’s favour.
Impact on victims
Paragraph 12.3(1) of the Direction provides:
“Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and can be disclosed to the non-citizen being considered for visa refusal;”
There is no direct evidence of the impact of a decision to grant a visa on members of the Australian community including the victims of the Applicant’s behaviour and their family members. The Tribunal notes that it can be said that as the drugs which the Applicant sought to possess were intercepted by Australian authorities, there are no specific victims of the Applicants criminal behaviour. In any event, the Tribunal considers that the prudent course in the absence of direct evidence of the impact of a decision to grant the Applicant a visa is to place no weight on this consideration. In these circumstances the Tribunal places no weight on this consideration.
Impact on Australian business interests
Neither party has argued that this consideration is relevant in the current matter. In these circumstances the Tribunal places no weight on this consideration.
Conclusion: should the power to refuse the Applicant a visa be exercised?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs significantly in favour of visa refusal in this case. The Tribunal has found that that there is a very low, but not insignificant, risk to the Australian community presented by the Applicant residing in the community while she awaits the outcome of her Partner visa application.
The Tribunal has found that the primary consideration of the expectations of the Australian community weighs significantly in favour of visa refusal in this case. The Tribunal has found that the considerations of hardship to Applicant and impact on family members each weigh significantly against visa refusal. The Tribunal has found that the Applicant and her family members in Australia, especially her grandmother, will be significantly adversely affected if the Applicant is not granted a Bridging visa.
The Tribunal considers that this is a very difficult case to decide. On one view, because of the considerations which are in the Applicant’s favour, and the very low risk that the Applicant will reoffend, the Applicant should be allowed to remain in the community in Australia at least for the short period of time before her Partner visa application is finally determined. This will allow the Applicant to spend at least some time with her grandmother in the community pending the determination of her Partner visa application.
However, the Tribunal considers that there exists a real possibility, however unlikely, that the Applicant’s acquaintance, who coerced her into acting as a drug courier, may do so again in the future. As such, the Tribunal remains concerned that the Applicant’s continued presence in Australia, even if that were for a short period, may put members of the Australian community at risk of serious harm. The Tribunal considers the risk of harm posed by the Applicant to the community in this case is unacceptable.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other relevant considerations in the Applicant’s favour in this case.
The Tribunal has found that the Applicant does not pass the character test and has decided that the discretion to refuse the Applicant a Bridging visa should be exercised.
Therefore, I have found that the decision of the Minister’s delegate to refuse the Applicant’s application for a Bridging E visa should be affirmed. The Tribunal considers that this is the correct decision in this case.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 235 (two hundred and thirty-five) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati

.........................[sgd]..............................................
Associate
Dated: 28 November 2019

Date of hearing:

11 and 12 November 2019

Solicitors for the Applicant:

Self-represented

Solicitor for the Respondent:

Ms Deborah Mak

Clayton Utz Lawyers

ANNEXURE 1 - EXHIBIT REGISTER
Between:    CQBW (Applicant)
And:           Minister for Home Affairs (Respondent)
Heard on:   Monday 11^th & Tuesday 12^th of November 2019.
At:              Brisbane

EXHIBIT

DESCRIPTION OF EVIDENCE

G1

Section 501G ‘G’ Documents provided 24 September 2019 (Paged 1 – 561)

R1

Australian Federal Police Statement of Facts provided 29 October 2019 (Paged 1 – 3)

R2

DFAT Country Information Report – Vietnam dated 21 June 2017 (Paged 1 – 26)

A1

Applicant’s Personal Statement (undated) provided 18 October 2019 (Paged 1 – 6)

A2

Applicant’s Statement in Reply provided 30 October 2019 (Paged 1 – 5)

A3

Article titled ‘Vietnam jails four asylum seekers over voyage to Australia despite ‘no retribution’ promise’ dated 26 May 2016 (Paged 1 – 2)

EXHIBIT	DESCRIPTION OF EVIDENCE
G1	Section 501G ‘G’ Documents provided 24 September 2019 (Paged 1 – 561)
R1	Australian Federal Police Statement of Facts provided 29 October 2019 (Paged 1 – 3)
R2	DFAT Country Information Report – Vietnam dated 21 June 2017 (Paged 1 – 26)
A1	Applicant’s Personal Statement (undated) provided 18 October 2019 (Paged 1 – 6)
A2	Applicant’s Statement in Reply provided 30 October 2019 (Paged 1 – 5)
A3	Article titled ‘Vietnam jails four asylum seekers over voyage to Australia despite ‘no retribution’ promise’ dated 26 May 2016 (Paged 1 – 2)