Dang and Minister for Home Affairs (Migration)

Dang and Minister for Home Affairs (Migration) [2018] AATA 2095 (4 July 2018)
Division:GENERAL DIVISION
File Number: 2018/1950
Re:QUANG VINH DANG
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:R CAMERON SENIOR MEMBER
Date:4 July 2018
Place:Melbourne

The Tribunal affirms the decision under review.
..........................[sgd]..............................................
Senior Member
Catchwords
MIGRATION - application for revocation of mandatory cancellation of visa – where applicant fails character test - where applicant warned visa may be cancelled – drug related offences – risk of harm if applicant re-offends - unacceptable risk of applicant reoffending - where Australian community would expect non-revocation - decision affirmed
Legislation
Migration Act 1958, s 501
Sentencing Act 1991
Cases
Re Ayache and Minister for Immigration and Border Protection [2018] AATA 310
Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Minister for Immigration and Border Protection, Ministerial Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of mandatory cancellation of a visa under s 501CA, 22 December 2014
REASONS FOR DECISION
R CAMERON SENIOR MEMBER
4 July 2018
INTRODUCTION

The Applicant seeks a review of a decision of a delegate of the Respondent, made on 11 April 2018 refusing, pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), to revoke the mandatory cancellation of the Applicant’s visa.
The mandatory cancellation of the Applicant’s visa was made by a delegate of the Respondent on 22 June 2017. The cancellation was effected because the delegate was satisfied that the Applicant did not pass the character test by reason of the operation of section 501(6)(a) of the Act.
The Applicant was born in Vietnam on 2 September 1977. He arrived in Australia on 7 June 1993, aged 15 years. He was the holder of a Class BB Subclass 155 (Five Year Resident Return) visa.
RELEVANT LAW
Migration Act 1958 (“the Act”)
With regard to the mandatory cancellation of visas, section 501(3A) of the Act provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
…; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act then provides that a person does not pass the character test if they have a substantial criminal record. Relevantly, for this application, section 501(7)(c) provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
Concerning the revocation of a mandatory cancellation decision, section 501CA relevantly provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way the Minister considers appropriate in the circumstances:
(i)        a written notice that sets out the original decision; and
(ii)       particulars of the relevant information; and
(b)invite the person to make representations to the Minister within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)       the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(5)If the Minister revokes the original decision, the original decision is taken not to have been made.
…
Where a decision has been made by a delegate of the Minister under section 501CA(4) not to revoke a mandatory cancellation of a visa, the affected person may make an application to the Tribunal seeking a review of that decision under section 500(1)(ba) of the Act. The Applicant filed this application for review with the Tribunal on 16 April 2018.
Under section 499(1) of the Act the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (section 499(2A) of the Act). Currently, the applicable direction is Direction No. 65 (“the Ministerial Direction”).
Direction No. 65
It is appropriate to record several of the sections of the Ministerial Direction that are applicable with respect to this Application. Paragraph 6.2 is entitled “General Guidance” and relevantly provides:
(1)The Government is committed to protecting the Australian community from harm as a result of the criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding … whether to revoke a mandatory cancellation under section 501CA. The relevant … factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The principles referred to in paragraph 6.2 are contained in paragraph 6.3, which relevantly provides:
(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 vulnerable members of the community such as minors, 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.
…
(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 noncitizen’s visa should be cancelled, or their Visa application refused.
Part C of the Ministerial Direction provides guidance for revocation decision-making and contains a number of primary and other considerations (outlined later in these reasons for decision). Finally, paragraph 8(4) of the Ministerial Direction provides that “Primary considerations should generally be given greater weight than the other considerations” and paragraph 8(5) states that “One or more primary considerations may outweigh other primary considerations”.
ISSUE TO BE DECIDED
The Applicant accepts that he fails the character test.[1] Having regard to this concession and the multiple terms of imprisonment exceeding 12 months that he has served, the Tribunal is satisfied that he fails the character test because of the operation of section 501(6)(a). Accordingly, the issue to be determined in this proceeding is whether there is any other reason why the mandatory cancellation should be revoked as provided for in section 501CA(4)(b)(ii) of the Act.
[1] This concession is made in paragraphs 7 and 8 of the Applicant's Statement of Facts and Contentions prepared by his counsel and filed on 30 May 2018 with the Tribunal.
THE EVIDENCE BEFORE THE TRIBUNAL
The following documentary evidence was before the Tribunal:
(a)A witness statement signed by the Applicant on 28 May 2018;
(b)A signed letter from the Applicant’s mother Luyen Nguyen dated 23 May 2018;
(c)A letter from Thi Kim Nguyen Dang of 24 May 2018;
(d)A “Letter of Support” signed by Vinney Le dated 25 May 2018;
(e)A psychologist’s report prepared by Tim Watson-Munro dated 29 May 2018;
(f)The G documents.
Additionally, viva voce evidence was given by the following witnesses;
·The Applicant;
·The Applicant’s sister Thi Kim Nguyen Dang;
·The Applicant’s daughter Vinney Le; and
·Consultant Forensic Psychologist Tim Watson-Munro.
THE APPLICANT’S HISTORY OF OFFENDING
The Applicant’s history of offending, save for convictions for possessing excisable goods namely cut tobacco[2] together with possession and use of amphetamines, relates mainly to the commission of drug offences being the cultivation of cannabis. The two most significant convictions on 2 September 2009 and 2 August 2013 were for cultivating a commercial quantity of cannabis. Further observations will be made concerning these offences later in these reasons.
[2] This presumably is what is frequently referred to these days as "illegal tobacco" upon which no excise duty has been paid.
The Applicant’s specific criminal history is as follows[3]:
[3] The details of the Applicant’s offending are contained in the National Police Certificate which is to be found on page 33 of the G documents.

Court

Date

Offence

Result/Sentence

Geelong County Court

2 August 2013

Cultivate a narcotic plant, a commercial quantity of cannabis

Theft

42 months imprisonment.

8 Months imprisonment. 5 months of sentence concurrent.

Melbourne Magistrates Court

26 September 2012

Possess amphetamine

With conviction, adjourned to 25 March 2013.

Melbourne County Court

2 September 2009

Theft.

Cultivate a narcotic plant, a commercial quantity of cannabis.

38 months imprisonment.

8 months imprisonment. 4 months of sentence concurrent.

Melbourne County Court

20 August 2004

Possess excisable goods (cut tobacco).

Convicted. Sentenced to 3 months imprisonment released forthwith on entering recognizance self $500.00 to be of good behaviour for 2 years.

The Applicant’s first offence, cultivating a commercial quantity of cannabis, for which he was convicted and sentenced by Her Honour Judge Millane at the Melbourne County Court on 2 September 2009 related to “a very large, sophisticated and functioning hydroponic laboratory for growing cannabis”. The premises upon which such hydroponic laboratory for growing cannabis was used were divided into “five separate grow rooms, with a varying number of cannabis plants at different stages of growth in each room.”[4] The police seized 143 cannabis plants with a cumulative weight of approximately 82 kg. Judge Millane described the photographs and paraphernalia seized by the police which were tendered in evidence and characterised it as “a large-scale and sophisticated operation”.
[4] Paragraph 7 of the reasons of her honour Judge Millane are referred to.
A feature of the Applicant’s offending in this instance was the fact that although the Applicant submitted he was not a “primary player” in the cannabis growing operation, he did not, despite the opportunity to do so at any stage, provide information to assist the police in identifying the principals, who he said were responsible for establishing the extensive and well-equipped drug cultivation operation. Her Honour observed that the Applicant’s record of interview contained “evasive and contradictory responses given about the friend [he] at first claimed also occupied the premises.” Her Honour also observed with respect to the record of interview that the Applicant had made “very limited admissions initially.” Further, the interview was terminated early at his request and had he been minded to do so he could have further assisted the police in their investigations at any time prior to the plea hearing. Failing to assist the police in their investigations in this setting does not reflect well upon the Applicant.
The Applicant’s second conviction in August 2013 of cultivating a commercial quantity of cannabis involved the police executing a search warrant which found a total of 66 plants growing in four rooms of a house, bearing a total weight of 48.84 kg. (This was well in excess of the 25 kg prescribed as the minimum for cannabis of a commercial quantity.)
A relevant aspect of the Applicant’s second conviction in August 2013 was the fact that he did so after receiving an official warning from the Department of Immigration and Citizenship on 13 May 2011[5] (“the warning”).
[5] The warning is document G 10 in the G documents at page 76.
The terms of the warning are referred to in their entirety for their full force and effect. It records that on 7 March 2011 the Department notified the Applicant that his visa might be liable for cancellation under section 501 of the Act on character grounds. The warning also stated that a delegate of the Minister after taking into account all relevant considerations had made a decision not to cancel his visa on character grounds on that occasion. A “formal warning” was then given to the Applicant that the visa cancellation decision could be reconsidered if he committed further offences or otherwise breach the character test in the future. Further, it stated disregarding the warning would weigh heavily against him if his case were reconsidered.
The warning was in clear and unequivocal language. The Applicant signed an endorsement on the last page of the warning stating that he understood that his visa could be cancelled if further information of relevance came to the attention of the Department at any time in the future.
It is of much concern that the offending engaged in by the Applicant which led to his conviction in 2013 commenced while he was on parole for offences of the same nature, namely cultivation of marijuana. This offending was a breach of his parole conditions. It does not reflect at all well upon him nor does it give one confidence about the risks of him reoffending.
The fact that the Applicant committed further offences of cultivating a commercial quantity of cannabis whilst on parole was described by the sentencing judge as “an aggravating factor”[6]. By reason of his offending the Applicant fell within the definition of a “serious offender” within the meaning of Part 2A of the Sentencing Act 1991[7] (“the Sentencing Act”). Therefore, section 6E of the Sentencing Act required every term of imprisonment imposed on a serious offender to be served cumulatively with any uncompleted sentences of imprisonment imposed on that offender, whether before or at the same time as that term.[8]
[6] This comment is made in paragraph 17 of the “Reasons for Sentence” of Her Honour Judge Cohen.
[7] Under section 6B (2) of the Sentencing Act 1991 the Applicant by reason of his offending fell within the definition of a "serious drug offender".
[8] See section 6E of the Sentencing Act 1991.
The “Reasons for Sentence” of Judge Millane given on 2 September 2009 and Judge Cohen given on 2 August 2013 reveal that on both occasions the Applicant was also charged with and pleaded guilty to, the theft of electricity from the relevant energy retailer[9]. He was convicted and sentenced to a term of eight months imprisonment on each occasion for the theft of electricity from the energy retailer. They are taken into account and do provide further evidence of his pattern of dishonesty.
[9] This fact emerges from paragraph 2 of the Reasons for Sentence of Judge Millane and paragraph 1 of the Reasons for Sentence of Judge Cohen. He was convicted and sentenced on both charges by Judge Millane to a sentence of 8 months imprisonment and by Judge Cohen to a sentence of 8 months imprisonment also.
There is little other evidence before the Tribunal concerning the other offences committed by the Applicant. For the possession of the illegal tobacco he was sentenced to three months imprisonment, released forthwith on entering a recognizance of $500 to be of good behaviour for two years.
However, the possession of illegal tobacco is indicative of excise tax avoidance or evasion. It is an offence of dishonesty. This is denying the revenue monies that should have been levied on such tobacco which would be applied by the government for the benefit of Australia’s citizens. It is an unfortunate reflection on the character of the Applicant that he is prepared to treat Australians and other law-abiding taxpayers in the nation, in this way. It is all the more disappointing given the opportunities that this country gave the Applicant in difficult circumstances.
THE PRIMARY CONSIDERATIONS
Paragraph 13(2) of the Ministerial Direction with respect to revocation requests prescribes the Primary considerations to be taken into account by the decision maker. It states:
…
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
Protection of the Australian Community
Paragraph 13.1(1) of the Ministerial Direction requires the Tribunal, when considering the protection of the Australian community, to acknowledge the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Paragraph 13.1(2) further states:
(2) Decision-makers should also 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.
Nature and seriousness of the Applicant’s conduct
Paragraph 13.1.1 of the Ministerial Direction relevantly provides that:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, 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;
c) The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e) The cumulative effect of repeated offending;
…
g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
…

In addressing this primary consideration the matters referred to under the Applicant’s history of offending between paragraphs 14 and 26 are referred to and repeated for their full force and effect.
It is then appropriate to turn to the relevant factors applicable to this case identified in paragraph 9.1.1 of the Ministerial Direction.
The sentence imposed by each of the trial judges is of course a relevant factor. Emphasis is placed upon the two sentences imposed by Judges of the County Court of Victoria. The first sentence imposed by Judge Millane on 2 September 2009 was for an effective sentence of 42 months imprisonment with a minimum 24 months non-parole period.[10]
[10] See document G 5 of the G documents being the "Reasons for Sentence" at paragraph 40 on page 59 of the G documents.
The second sentence was imposed by Judge Cohen on 2 August 2013. On that occasion he was sentenced to a total term of 42 months with a non-parole period of 2 years 4 months.
These are significant custodial sentences. As also noted earlier the seriousness of the crimes committed is amplified by the fact that the Applicant is classified as a “serious drug offender” by operation of the relevant provisions of Part 2A of the Sentencing Act. Additionally, the gravity of the Applicant’s criminal offending is confirmed from the volume of marijuana that was recovered by the police at the time his offending was detected. On the first occasion there were 82 kg of marijuana seized and in the second offence 48.84 kg was seized.
The Trial Judge observed in her reasons when handing down the second sentence in August 2013 that the estimated value of the marijuana seized on that occasion was $198,000. Whilst the estimated value of the first crop was not referred to by the sentencing judge in her reasons, it can be inferred that at 82 kg the value was likely to be significantly greater in dollar terms than the second crop. These were potentially vast amounts of money to be made from this criminal enterprise. Presumably, the cannabis grown in this enterprise would have been sold for cash with no tax being paid to the revenue on the proceeds of such sales. It does reflect the seriousness of the Applicant’s offences.
Once again with respect to frequency of the offending the observations made earlier in these reasons are referred to and repeated. The fact that the second offence occurred whilst the Applicant was on parole and within approximately seven months of his release amplifies the nature and seriousness of his offending. It appeared that he simply had not learnt from his first experiences. It does not reflect well upon him.
Furthermore, as noted earlier the Applicant reoffended following a formal warning. This is another factor that the Tribunal takes into account when assessing the nature and seriousness of the conduct. On this question it should be observed that when the Applicant was asked in cross-examination whether at the time of his reoffending he was aware that he might get into trouble with immigration, he stated: “No I did not know”. This response seems impossible to accept in light of the fact that he was given a formal warning on 13 May 2011 whilst he was in custody. Apparently, his signature appears on the document acknowledging its receipt. At no time was his receipt of the relevant document denied. Accordingly, the Applicant’s response in cross-examination cannot be accepted by the Tribunal. Once again it does not reflect well on him and does amplify the seriousness of his offending in the context of the factors that the Ministerial Direction mandates that the Tribunal must take into account when undertaking an assessment of the nature and seriousness of the Applicant’s offending[11].
[11] Clause 9.1.1 (1) (i) of the Ministerial Direction is referred to.
There are several other matters that must be reiterated in terms of the nature and seriousness of the offending by the Applicant. Some of these considerations were identified above under “The Applicant’s History of Offending”. However, they should be repeated in an analysis of this primary consideration.
The observations of Judge Millane concerning the Applicant’s conduct in the interview and the limited admissions he made during such interview are referred to and repeated. Her Honour found after an examination of the relevant record of interview and applicable medical evidence that she was not satisfied, as had been submitted by his solicitor, that for the duration of the interview he was unfit to be interviewed. Her Honour concluded that he made limited admissions and gave evasive and contradictory responses about a person described as a “friend” who he first claimed also occupied the premises upon which the cultivation of the marijuana took place. (The friend has never been identified.)
Additionally, there was the failure of the Applicant to identify the principal or principals who were responsible for establishing the extensive and well-equipped drug cultivation occupation. The learned Judge also observed that the Applicant denied knowledge of the cultivation activity at the premises and sought to allege that a friend who had since travelled to Vietnam was responsible for it. An explanation was proffered that he was a very occasional occupant of the premises who, from time to time, performed maintenance work such as mowing the lawns but because he drank too much somehow failed to notice what was happening. This explanation had an added air of unreality to it given that the landlord of the property stated that he advertised the premises and in response to such newspaper advertisement the Applicant contacted him by telephone and arranged a meeting at the subject premises. The Applicant attended the premises with another male who acted as an interpreter. This male has never been identified by the Applicant to the police. The learned Judge was in effect holding that the Applicant had made a series of false denials to the police. This of course was highlighted by the subsequent guilty plea and sentencing hearing in which the Crown’s opening was tendered without objection.
Collectively, these matters reflect very badly on the Applicant. They also seem to reflect a considerable disregard on the part of the Applicant for authority. At no time before the Tribunal did the Applicant seek to explain why he had behaved in this way.
Another aspect of the Applicant’s offending with respect to the first conviction for cultivation of marijuana relates to his explanation that it arose because he needed to raise money to repay a gambling debt. In his evidence before the Tribunal from the witness box he stated that the debt was approximately $5,000 to $7,000. In the psychologist report from Mr Watson-Munro the figure referred to was a debt in excess of $20,000. This discrepancy was not explained by the Applicant in the witness box. Whether or not such a discrepancy was explained the Tribunal does not place a great deal of weight upon. However, what is of concern is the difference between the magnitude of the gambling debt and the value of the marijuana that was being cultivated. No explanation was offered for the magnitude of the difference or what amount the Applicant was likely to receive from the enterprise. It seems, however, that it was likely to be considerably more than the gambling debt, whatever it may have been.
In the psychologist report, Mr Watson-Munro observed that the gambling debt of the Applicant was owed to, or that he, “fell prey to” “loan sharks who would provide him with money at a high rate of return.” The Applicant was recorded as stating to Mr Watson-Munro that as a result of his gambling debts, he was given the choice of returning to Vietnam to traffic narcotics or to grow marijuana. The Applicant stated that if he did not agree, he and his mother would be in serious jeopardy. This explanation was not given by the Applicant or anyone on his behalf, to either the sentencing Judge or the Tribunal in this application.
Judge Millane found that the Applicant had a reported addiction to gambling over a period of seven years, which Her Honour did not treat as a factor in his offending. This was because his gambling ceased some two years prior to the assessment by Dr Deacon, which was encapsulated in two detailed reports prepared in October 2008 and February 2009. Her Honour noted he had stated to Dr Deacon and made a submission to that effect that he agreed to grow the crop to repay a substantial gambling debt, although since his arrest the “friends” to whom the money was owed had in his own words “let me go”.
Her Honour further noted that in all circumstances the Applicant through his solicitor claimed “unconvincingly, to have been drawn into this growing operation without fully understanding its illegality and without fully appreciating the gravity of the offences committed”. Her Honour concluded that when he entered into the arrangement he was no stranger to the illicit drug scene and when given the opportunity chose to discharge his gambling debt by tending the crop.
There was an additional inconsistency concerning the Applicant’s explanation for his offending on the first occasion in the material before the Tribunal. In his letter to the Department on 30 October 2017[12] he blamed his addiction to amphetamines which caused him to grow marijuana and steal to support his habit. There is simply no reference to the gambling debt in that letter at all. This omission is to say the least surprising and does not reflect particularly well on his credibility. The Tribunal acknowledges that in his Personal Circumstances Form dated 26 June 2017[13] he does state that the cultivation and sale of drugs were to help fund gambling habits.
[12] The letter is document G 14 of the G documents at page 97.
[13] Document G 13 of the G documents.
Another factor that reflects the seriousness of the Applicant’s offending is, as was observed by Judge Cohen, the fact that the maximum penalty for a charge of cultivating cannabis in no less than a commercial quantity is 25 years imprisonment. Her Honour stated that this is a reflection of the seriousness of these offences as regarded by the community through Parliament[14]. Her Honour remarked that the proliferation of crops of this nature, as a source of ready money for those assisting in growing them, has far-reaching implications for the whole of the community, as it causes a proliferation in availability of the strongly addictive substance in this drug. Whilst no evidence was led on the issue, the effects of strongly addictive marijuana particularly on younger people and their developing brains (not to mention all users) must be of concern. It does not seem that it was of any concern to the Applicant.
[14] These comments are to be found in paragraph 18 of Judge Cohen’s Reasons for Sentence.
This also prompts a consideration of the Applicant’s explanation given to the Tribunal for his offending with respect to the second conviction for cultivation of marijuana. Before this Tribunal the Applicant submitted that it was caused by his addiction to ice. This evidence was given by him from the witness box where he recounted that he met some people in prison who smoked ice and introduced him to it. He therefore needed money to fund his ice habit. A similar history was given by him to Mr Watson-Munro which is recorded in his report that was in evidence before the Tribunal.
However, this explanation was not given to Judge Cohen when Her Honour received submissions on his behalf at the sentencing hearing. There was no further information or explanation put forward about his reason or motivation for engaging in the offences of cultivating marijuana. Her Honour observed that the offending was clearly an attempt to make money, whether in payment of a debt, or for his own use, which Her Honour did not know. Her Honour concluded that she was satisfied that with his background there would have been a great temptation for what is well known to be a relatively quick and substantial reward from cannabis cultivation. This inconsistency with the evidence subsequently given to the Tribunal does not reflect well upon him. The Respondent did not submit the explanation that the offending was caused by the use of ice was a recent invention as such but certainly did attack his credibility by submitting that it was put on a higher footing than was the case.
Judge Cohen also stated in her reasons that the Applicant did not enter a plea of guilty to the second charges of cultivating marijuana until the first day of the case being listed for trial. Her Honour also observed in the context of the eventual guilty plea that the Applicant’s interview with police did not reflect acceptance of responsibility for the offences to which he did eventually plead guilty and “included some unsophisticated denials and lies.” His interview in these circumstances reflected a pattern of conduct similar to the interview that he gave to the police in the investigation of the first offences. It tends to show a habit, if not a propensity on the part of the Applicant, to be prepared to make misleading if not false statements to the police in interviews. Once again this does not reflect well upon him and his attitude towards authority.
For the reasons articulated above the very serious nature of the Applicant’s offending weighs heavily against the revocation of the decision to cancel his visa.
Risk to the Australian Community should the Applicant reoffend
Paragraph 13.1.2 of the Ministerial Direction provides that:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers 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. 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.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Should the Applicant reoffend, there must be a significant risk to the Australian community that he will reoffend in some way related to the production and distribution of drugs. If cannabis is used as a starting point it is appropriate to reiterate the observations of Judge Cohen that marijuana is a drug that contains a strongly addictive substance. Drug addiction is a significant cost to the Australian community. It starts with the destruction of people’s lives in many cases. This destruction manifests itself in many ways such as inability to hold a job, homelessness and significant mental health problems over a variety of complaints, to name a few effects.
The further risks to the Australian community resulted from the drug trade and drug addiction arise from the direct cost to the health care system, police and emergency services, social security and other social support systems. A further by-product of this trade is the criminal consequences. Some people who are addicted to drugs (as indeed the Applicant himself gave evidence of) commit crimes without thought as to their consequences. Some of those people addicted commit those crimes to support their habit. Frequently, home burglaries and other robberies are committed by people who are addicted to various drugs.
Some people addicted to drugs are preyed upon by unscrupulous criminal syndicates by reason of the effect that the drug consumption has had upon their capacity to think critically or properly and exercise appropriate levels of reason and judgement. Then of course there are the masterminds of the drug trade who manipulate such trade for rampant personal gain, motivated by toxic greed. It is a scourge on society which has to confront both direct and opportunity costs arising from its effects.
This then poses the question of the Applicant’s prospects of rehabilitation. He himself has given evidence to the Tribunal that it will not happen again. He states that he has had a long time to reflect upon his crimes whilst he has been in jail. He even stated that he has had a “spiritual awakening after so long in prison.” He stated that if he is allowed back in the community he will keep out of trouble and promised he will never commit any offences again. He gave evidence of his connection to his mother and daughters and his desire to no longer let them down.
Additionally, he gave evidence of his support from his sisters and a desire to fill a gap in their lives. Apparently, his sister’s husbands or partners have separated from them and he wishes to step into the shoes of those fathers as a “father figure” for his sister’s children. It was submitted by him and on his behalf that the family support that he has will be a motivating factor toward not reoffending.
Whilst one can accept these desires as expressed in the hearing before the Tribunal, the question has to be posed as to what consideration his family had upon him or, perhaps what consideration he gave his family when he has reoffended previously. His track record to date does not give the Tribunal confidence that these well expressed intentions will be upheld. The Applicant’s most recent offending for which he was convicted of cultivating cannabis indeed occurred on a property at Lethbridge which was owned by his sister. It was also the Applicant’s residential address for which he was registered with Centrelink for the purposes of receiving a Newstart allowance and other official correspondence. His sister was not involved in the cultivation of marijuana at the property and it appears had absolutely no knowledge of it. The fact that he was prepared to engage in serious criminal offending on his sister’s property without any concerns for her also does not reflect well upon him and the attitude that he has displayed towards two members of his family in the past.
The Applicant in his evidence and of course from his counsel’s submissions did mention that he had the benefit of the recommendations of Mr Watson-Munro. He acknowledged that Mr Watson-Munro had recommended that he see preferably a Vietnamese speaking psychologist for regular sessions and treatment to deal with several of his issues. He stated that he was happy to undertake that course of treatment or consultations as the case may be, if he was released into the community. This will require the Applicant to be prepared or perhaps be motivated to undertake this treatment with an appropriately qualified health professional, or as recommended by Mr Watson-Munro a Vietnamese speaking psychologist. No doubt it is a sensible professional recommendation. However, once again the track record of the Applicant does not provide confidence this might occur or, if it were to commence, that he would continue to adhere to a consistent treatment program recommended by appropriate mental health care professionals such as Mr Watson-Munro.
The contentions of the Applicant under this primary consideration placed significant emphasis on the report of Mr Watson-Munro. There was also the viva voce evidence of Mr Watson-Munro himself. The report gave a fairly detailed history of the Applicant’s background. This background included his early years in Vietnam and difficulties travelling by boat when the boat was hijacked by pirates which caused him to be separated from his mother after he was thrown into the sea and rescued by a Thai fisherman. Following his rescue he wound up in a refugee camp separated from his mother. They were not reunited until approximately a year later. (His mother gave quite confronting evidence about these events and the separation from her son together with the effects upon her and the Applicant. Naturally, one cannot help but be moved by this account and it has been taken into consideration by the Tribunal.)

His subsequent arrival in Australia and drug, alcohol, gambling and psychological troubles were also recorded by Mr Watson-Munro.
Several things emerged from Mr Watson-Munro’s report. He observed the Applicant as being clearly a psychologically distressed man. Mr Watson-Munro observed that the Applicant expressed appropriate remorse for his behaviour and a strong commitment to remain crime-free. A significant motivating force for this belief was said to be a genuine concern for his family. He noted that in his professional opinion the Applicant had endured long-standing psychological problems from early adolescence for which there had been no real treatment. This was notwithstanding the fact that on the first occasion he came to the attention of the County Court, a depressive disorder had been diagnosed. He commented that the Applicant had not at any stage received any form of psychotherapy. He believed that if a suitable program of treatment was instituted, significant gains would be made in terms of both his clinical and forensic prognosis. The consequences of such a treatment program therefore, would be that the likelihood of reoffending by him would be substantially reduced.
The Tribunal notes the opinions and recommendations expressed by Mr Watson-Munro. Much of this was also articulated in his evidence from the witness box. The concern that must be had on any objective assessment of the Applicant in terms of the risks of him reoffending is that such a proposed course of management and treatment such as psychotherapy sessions or regular consultations with a Vietnamese speaking psychologist require the continued commitment of the Applicant. The Tribunal is concerned as to whether or not the Applicant would be prepared to diligently adhere to any such recommendation.
To Mr Watson-Munro’s credit, he identified the fact that the Applicant had earlier received some medical examination and diagnosis during his previous custodial sentence. It is apparent from the reasons of Judge Millane that the Applicant was assessed by a Dr Deacon for the purpose of a bail application. Following this assessment he was held in the Acute Assessment Unit at the Melbourne Assessment Prison. Her Honour observed that this step was taken because following his imprisonment, he was significantly distressed, agitated and against a background of reported significant trauma and cannabis dependence, was diagnosed with an Acute Stress Reaction and cannabis withdrawal.
He was subsequently also diagnosed as suffering from a major depressive episode and post-traumatic stress disorder (“PTSD”), for the treatment of which anti‑anxiety and antidepressant medication was administered. Her Honour accepted the diagnosis of long-standing PTSD.
Judge Millane further recorded in her reasons that when the Applicant was first assessed by Dr Deacon, he felt that apart from medication the Applicant would benefit from drug counselling to manage cannabis dependency. Further, Dr Deacon recommended management by one of a number of Vietnamese speaking psychiatrists who could also assist with what were described as “cross-cultural issues”.
Following his bail the Applicant apparently attended a number of counselling sessions with a psychologist. However, over that time it appears that his PTSD issues were not addressed. Judge Millane observed that he returned to the community without the ongoing prescription of psychotropic medication or other treatment. Her Honour stated that this was by choice, because the Applicant was apprehensive about what a doctor or psychiatrist might diagnose. What that diagnosis actually was is not apparent.
The Applicant was re-examined in February 2009 by Dr Deacon who furnished a report to the Court and gave evidence at the plea hearing. He stated then that the Applicant had largely recovered and was coping well without medication. He properly observed that this observation did not mean that the Applicant did not require treatment to address underlying and long-standing PTSD and drug dependency issues. He recommended careful monitoring in the jail environment to avoid an ongoing risk of psychological decompensation.
Judge Millane also observed that in the report prepared by Dr Deacon the Applicant stated prior to his incarceration he had developed a significant dependency on marijuana “smoking 20 to 30 bongs per day”. This level of marijuana dependency is significant which must be of concern in the event of a relapse.
The reason for recounting this history is that it is evident from that material that the Applicant was advised of the necessity to seek appropriate counselling and/or treatment for these issues as far back as 2008. Notwithstanding this recommendation from some highly qualified mental health professionals, the Applicant chose not to accept that advice and undertake the appropriate program of treatment. It is of concern that he did not avail himself to this recommendation, giving rise to a conclusion that there is a realistic risk that the Applicant might reoffend.
Another relevant consideration concerning the Applicant’s risk of reoffending is to be found in the comments of Judge Cohen on this topic. In her Reasons for Sentence Her Honour observed that she had considered the Applicant’s prospects of rehabilitation. Her Honour stated she did not regard them as hopeless, although she concluded that those prospects were not all that strong in light of him having reoffended so soon after his last release from prison. For reasons that are not altogether apparent to the Tribunal, Her Honour stated this was in light of the fact that the Applicant had a lack of family support or prospects of future employment.
The Tribunal acknowledges that whilst in prison the Applicant has completed courses in the Ice Effects Program and a 24 hour (closed) Drug and Alcohol Treatment Program (Level 111). This is very much to his credit.
Overall, the Tribunal cannot accept, as the Applicant contends, that his risk of reoffending is limited. For the reasons articulated above on any objective consideration there must be a reasonable prospect of him reoffending in the future, which in the context of this consideration in the Ministerial Direction, must weigh against him.
BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 13.2 of the Ministerial Direction provides, amongst other things,[15] that:
(1) Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
...
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there have been long periods of absence, or limited meaningful contact (including whether any existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role the future, taking into account the length of time until the child turns 18, and any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
[15] Not all of the Ministerial Direction contained in paragraph 13.2 has been reproduced here. Only those portions of it that are strictly relevant to this application have been reproduced here. However, the entire paragraph is referred to for its full force and effect.
There are three minor children affected by this decision who are the nephews of the Applicant (being the children of his sisters.) They are Louis, currently aged 16 years; Jack, currently aged 12 years and Vincent, currently aged 10 years. The Applicant has given evidence that he has a close bond with his sister Thi Kim Nguyen Dang’s children because their biological father plays no role in their lives. The substance of his evidence was that he represents a father figure to her boys because she is a single parent. (His sister in her witness statement did not go quite so far but in her evidence from the witness box largely corroborated the Applicant’s account of his relationship with her children and reiterated that he was a father figure to her children and that under her culture when a father is not around the uncle takes on the father figure role).
The Applicant does not give specific evidence about his relationship with the other nephew in his witness statement but did loosely seek to give evidence from the witness box asserting that he had a similar relationship with all of his nephews.
The Applicant contends that this primary consideration weighs in his favour. There are several paragraph 13.2 criteria which should be taken into consideration by the Tribunal in conducting its analysis of this factor. As a starting point the paragraph provides that generally less weight is given where the relationship is non-parental, as is the case here.
Additionally, paragraph 13.2 also provides less weight attaches to this consideration where there have been long periods of absence or limited meaningful contact. The evidence is not particularly strong as to the nature and duration of the contact between the Applicant and his nephews but it appears that for most of his nephews’ lives the Applicant has been in custody. There could not have been much contact at all which would have facilitated the development of a meaningful relationship in the relevant sense provided for in the paragraph. There is no evidence before the Tribunal as to how frequently during the Applicant’s periods of custody his nephews visited him. In the period that he was released from custody after his first prison sentence, no evidence has been provided as to the frequency and nature of the contact that he may have had with his nephews. One would have suspected that if it was frequent, there would have been some evidence before the Tribunal to this effect.
The extent that the Applicant is likely to play a positive parental role to his nephews in the future is very difficult to assess. At least one of those nephews is just under three years from turning 18. Whilst the Applicant indicates that he will attempt to step into the shoes of his nephews’ fathers, it is not altogether certain precisely that he would fulfil a positive parental role, within the meaning of the expression contained in the relevant paragraph of the Ministerial Direction. It is of course predicated on him not returning to a life of drug dependency and crime.
There is also the impact of the Applicant’s prior conduct of offending, drug addiction and alcohol consumption. His conduct to date does not indicate that he is a positive role model for the nephews concerned. It is possible that if he reverts to a life of drug dependency and crime, he could have a negative impact on the children.
This factor probably marginally weighs in favour of revocation of the cancellation decision, but the Tribunal finds that little weight would be placed upon it in any event.
Expectations of the Australian community
Paragraph 13.3 of the Ministerial Direction relevantly provides:
(1)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 not revoke the mandatory visa cancellation of such a person. Non-revocation 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 not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
It is not an unreasonable expectation of the Australian community that its citizens and those residing in it obey the law. The Applicant did not obey the law and his criminal behaviour was plain and simply unacceptable. It was opportunistic, motivated by greed and no doubt a desire to obtain comparatively easy money. It may or may not have been motivated by a need to repay gambling debts and in the context of impaired judgement due to ice addiction. Whatever the motivation it can hardly be said to be conduct that in any way meets community expectations.
Recently, Mortimer J in YNQY v Minister for Immigration and Border Protection[16] made the observation that, in substance, this consideration (paragraph 13.3(1) of the Ministerial Direction) is adverse to any person who has failed the character test and has been convicted of serious crimes. Her Honour further noted that this paragraph of the Ministerial Direction was in effect a deeming provision about how the executive government wishes to articulate community expectations, whether or not there is any objective basis for such belief. Her Honour concluded that it was inevitable that such a consideration will weigh against revocation and indeed that was the intention of such paragraph in the Ministerial Direction.
[16] [2017] FCA 1466 at [75]-[77]. The approach of Mortimer J in YNQY was also helpfully considered by Forgie DP in Re Ayache and Minister for Immigration and Border Protection [2018] AATA 310 at [60]-[75].
It is contended for the Applicant that some members of the community would be sympathetic to his background. His background has several dimensions to it. Those dimensions have been articulated in some of the evidence given by the Applicant himself, his mother who accompanied him from Vietnam, escaping by boat which was attacked by pirates. There was the subsequent separation from his mother, stay in a refugee camp in Thailand and pressures that he faced there. The absence of his father also cannot be overlooked. His later history includes the difficulties that the Applicant incurred in adapting to the cultural differences in Australia, not to mention language barriers. There were limited employment opportunities for him together with limited educational outcomes. The Tribunal recognises all of these factors.
It is contended that the Australian community must bear a level of responsibility for the difficulties the Applicant has had integrating into Australian society. It is further contended that Australia has failed to provide him with opportunities in terms of education and employment. It is difficult to accept this rather broad contention. Many people come to this country from all over the world in difficult circumstances but manage to adapt and make their way in life. These people manage to adapt and make their way in life in various ways and with various levels of success. This is not in any way to downplay or not recognise the hurdles that these people face.
However, it seems a slightly long bow to draw to suggest that the Australian community should bear some responsibility for the Applicant’s predicament. Indeed, the Applicant in his statement of personal circumstances admits that he had an opportunity for education in this country but for whatever reason did not complete schooling. (He completed schooling to year 10 at Maribyrnong High School. He also attended the Maribyrnong Language Centre shortly after his arrival in Australia.) As a permanent Australian resident he has had access to a variety of further educational opportunities if he had chosen to avail himself of them.
Similarly, he has had access to a variety of healthcare services including psychologists, appropriately qualified medical professionals and counsellors, had he chosen to avail himself of them. Further, as noted above on the first occasion when he was sentenced for cultivating marijuana in 2009, some appropriate advice and recommendations were given to him to manage these issues. He chose not to do so. The advice that was given to him is a reflection of what the Australian community is prepared to offer any person who lives here. It does not seem correct to assert in this setting that Australia bears a level of responsibility for his failure to integrate in these circumstances.
This is not in any way to downplay the significance of the Applicant’s history, particularly prior to his arrival here. This country has had a long history of accepting refugees from Vietnam. The community’s generosity in this regard is unquestionable when conflict causes people in foreign lands to suffer. The Australian nation has always been prepared to extend the hand of compassion, assistance and humanity.
The Australian community has always recognised the concept of rehabilitation and of a second go. It has an expectation that when a person is dealt with by the criminal justice system that they will reform and not reoffend. The Applicant was given that chance. It will be recalled that the Applicant was expressly warned after his first term of imprisonment that if he reoffended he might be again considered for cancellation of his visa.[17] In the face of this warning he reoffended very quickly.
[17] Document G 10 of the G documents.
In this context the Australian community surely would expect that at the very least the Applicant, having been convicted once and imprisoned for the cultivation of marijuana, having been given the warning, would not whilst on parole and shortly after his release from prison reoffend in exactly the same way. This is also exacerbated by the fact that the Applicant cultivated a drug containing a strongly addictive substance used by many young Australians. At the very least the Australian community would see this conduct on the part of the Applicant as profoundly letting down a society that has given him a chance, even a second chance.
There are limits to just how far generosity, sympathy and opportunities for rehabilitation will be extended by the community in a setting such as this one. In these circumstances the community would expect the Applicant to have his visa cancelled.
OTHER CONSIDERATIONS
There are other considerations that should be considered in revocation matters which are identified in paragraph 14(1) of the Ministerial Direction. It provides that:
(1)       … These considerations include (but are not limited to):
a)        International non-refoulement obligations;
b)        Strength, nature and duration of ties;
c)        Impact on Australian business interests;
d)        Impact on victims;
e)        Extent of impediments if removed.
International non-refoulement obligations and other considerations
The Applicant in his Statement of Facts and Contentions has expressly stated that he does not seek to rely upon Australia’s international non-refoulement obligations[18]. He also does not rely on the impact on Australian business interests.
[18] Paragraph 42 of the Applicant's Statement of Facts, Issues and Contentions are referred to for the thrust of the Applicant's submission concerning this consideration.
With respect to impact on victims there is no evidence upon which the Tribunal can rely and neither party sought to advance any argument concerning its application to this case. Further, there are no identifiable victims of the crimes committed by the Applicant other than the power retailers and distributors whose electricity was stolen. There is no evidence beyond the respective sentencing judge’s comments about the value of such power. Presumably, they are major corporations. Beyond these observations there is nothing further that the Tribunal can comment on concerning this consideration. Therefore the Tribunal considers it does not need and ultimately is really unable to, take this consideration into account.
Strength, nature and duration of ties to Australia
The Ministerial Direction at paragraph 14.2 addresses the matters to be taken into account for this consideration:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

As previously noted, the Applicant was born in Vietnam and arrived in Australia in June 1993 at the age of 15. He arrived here after a traumatic boat journey to Thailand when he was the victim of piracy and thrown overboard to be rescued by a Thai fisherman and spent approximately one year separated from his mother. After some years he arrived in Australia with his mother and sisters.
His father became separated from his family at this time although his mother and father left Vietnam together. His mother gave evidence that she lost track of the Applicant’s father. She believes he was captured and taken to Cambodia. She stated she does not know where he is now.
His mother gave evidence both by witness statement and in the witness box. It was a harrowing story of the journey from Vietnam by boat, the attack by pirates, the separation from her son when he was thrown into the water and subsequent time in the refugee camp. She was clearly very distressed by the experience, not to mention the dreadful predicament that her son has got himself in. One could not but feel considerable sympathy for her. She also demonstrated an unconditional love for her son notwithstanding his history of offending. It should be observed that the connection between mother and son was reciprocated by the Applicant.
It is not altogether clear but the Tribunal acknowledges that the Applicant did provide some care and assistance to his mother to a limited extent when not in custody. However, overall the contribution and support he has made to his mother and her welfare has for a significant portion of his time in Australia been limited. He has let his family down. The Applicant was obviously quite embarrassed by the stress and trauma that he has caused his mother. There is no doubt that if the decision to cancel the Applicant’s visa is not revoked it will have a significant effect on the Applicant’s mother. This is a matter that must weigh in the Applicant’s favour.
His mother also gave evidence that if her son were returned to Vietnam she would be unable to visit him. She recounted that she does have some illness or affliction concerning her hands and fingers (including carpal tunnel syndrome) which prevents her from being able to work. She is largely now hamstrung by living expenses and medical costs. Her sole source of income is the Disability Support Pension. However, it is not as if she is without any support given the absence of her son who has been unable to assist her for many years whilst he has been in custody. She will have the support of her two daughters. One of those daughters gave evidence to the Tribunal and was an impressive witness who unquestionably will continue to support her mother in the event that the Applicant is no longer able to do so, in whatever limited way he has done to date. Her daughters obviously supported her considerably over quite some years in a way that their brother has not. Similarly, it appears that the other daughter would provide the same level of assistance.
The Applicant has two adult daughters. One of the adult daughters, Vinney Le, who is his youngest daughter, gave evidence before the Tribunal. She stated that she didn’t know her father prior to 2009 because her parents had separated. Her mother did not want her to have anything to do with her father or her father’s side of the family. She stated that she knew nothing about her father until that time. After 2009 apparently both girls have had more contact with their father. Vinney gave evidence that after she made contact with him she had fairly regular phone conversations and face-to-face contact through visiting him whilst in custody. Vinney stated that her father had discussed with her his gambling addiction and drug addiction problems and stated to her that he knew what he had done was wrong. She contends that he has taught her and her sister appropriate values and morals by which someone must live.
Whilst the Tribunal acknowledges that there has been a connection developed between the Applicant and his daughters since 2009, the fact that ultimately he has been in custody for most of that time must mean that the connection is somewhat limited. The Tribunal observed that his history of offending does not really point to him being a particularly good role model for his daughters. Nonetheless, the Tribunal was impressed with the evidence given by Vinney Le. She presented as a sympathetic, conscientious and intelligent young woman who has a genuine love and concern for her father. The absence of the Applicant will have an effect unquestionably on his daughters. This does to some extent weigh in his favour.
As noted earlier, in addition to his mother being present in Australia, there are also his two sisters who are Australian citizens living in Melbourne. One of his sisters gave evidence and has made a statement. There was evidence that both of his sisters’ husbands or partners have separated from them. Once again presumably, because of his lengthy period in custody, his relationship with his sister’s children to date will of necessity have been limited. However, the evidence from the family members, particularly the sisters, was that the Applicant would play a significant role in their children’s upbringing in the event that he is released into the community. Apart from the family connection between them it was explained to the Tribunal that in Vietnamese culture if a father separates from his family it is most common for an uncle to in effect step into the shoes of the father to provide whatever support he can both in an emotional sense and in an economic capacity. This is also a factor that weighs in favour of the Applicant.
When the Applicant was not in custody there is evidence that he has had employment at several places including Cadbury’s Chocolates, farming positions and as a packer at the Footscray Market. Accordingly, he has made some contribution to the community, even if it has been somewhat limited in recent years.
The Applicant contended that the evidence in favour of this consideration is so strong that it merits elevation to equal status with the primary considerations contained in the Ministerial Direction. Reliance was placed upon the construction of the language used in paragraph 8(4) of the Ministerial Direction and its use of the word “generally”. The Applicant relied on the decision of Schuster-McFadyen v Minister for Immigration and Citizenship.[19] The Tribunal accepts the approach of Schuster-McFadyen in that it is open to the Tribunal to give equal or greater weight to any consideration including one of the “other” considerations such as the strength, nature and duration of ties to Australia. However, for the reasons articulated above, whilst there is absolutely no doubt that the Tribunal will place significant weight on this consideration in the circumstances, it cannot find that it is equal in status to the other primary considerations. There is no doubt that this consideration weighs significantly in the Applicant’s favour.
[19] (2011) 124 ALD 68.
EXTENT OF IMPEDIMENTS IF RETURNED TO VIETNAM
The Applicant contended that this consideration is of particular importance. Several matters were relied upon. The Applicant has no connection with Vietnam. He does not have any connection with his father nor does he know whether he is still alive or if so, where he is. He has an uncle in Vietnam but has had no connection with him whatsoever. His grandparents died some years ago.
At a practical level he does not know where he would live or, how he would survive. He points out that he is 40 years old with limited education. Additionally, he holds fears that he will be unable to get work and will have no means to support himself. His family cannot really support him other than perhaps his sisters, who may be able to visit him.
There are several relevant considerations in this assessment. Firstly, he speaks the language. Secondly he has visited Vietnam on no less than seven occasions since his arrival in Australia in 1993.[20] He stated that the purpose of such visits was amongst other things, to visit maternal and paternal grandmothers. They were in a village known as Kien Giang. They have apparently now passed away. He presumably has some reasonable familiarity with the country and its ways.
[20] The "Movements Details" (document G capital seven of the G documents) establish this. He also admitted this fact in his evidence.
There is limited evidence available but the Respondent contends that the Applicant is a citizen of Vietnam, has the same access to social, medical and economic support as other citizens. There is no real evidence before the Tribunal as to whether or not he would be denied access to social, medical and economic support in the event of his return. This is not in any way to downplay the significant hurdles that the Applicant will face upon such a return for many reasons. He has lived in Australia for 25 years. However, it was not contended by the Applicant that he could not re-establish himself there.
He will have to adjust to life in Vietnam without his family. There was the evidence of at least one of his sisters that she would do what she can and visit him. The Tribunal has no doubt she will.
Overall, the Tribunal considers that this consideration considerably weighs in favour of the Applicant. However, the Tribunal considers that this consideration does not outweigh the primary considerations outlined above. The Applicant’s criminal conduct is serious and was repeated, whilst on parole in a relatively short time after his release from his first prison sentence. Whilst the Tribunal acknowledges, on the very limited evidence available, some concerns about his capacity to adapt to life in Vietnam, the concerns of protecting the Australian community from the effects of drug trafficking and cannabis cultivation are well-founded on the very clear evidence before the Tribunal.
CONSIDERATION AND CONCLUSIONS
The Applicant arrived in Australia in June 1993 at the age of 15 after having spent some years in a refugee camp in Thailand after escaping from Vietnam with his family by boat.
He has been convicted of several crimes. His first offending occurred in 2004, some 11 years after his arrival in Australia. The serious offending occurred in 2009 and 2013 and resulted in convictions for cultivating a commercial quantity (being in excess of 25 kg) of marijuana. There are also other convictions for theft of electricity and possessing excisable goods.
In determining whether there is any other reason why the decision to cancel the Applicant’s visa should be revoked as permitted by section 501CA(4) of the Act, the Tribunal has to weigh up the several competing considerations that have been ventilated before it in the course of this proceeding. However, it attaches the most weight to the fact that his offending is serious. The reasons articulated above concerning these matters are referred to and repeated.
There are several reasons why this is so. They can be summarised as follows:
a.The Applicant was convicted twice of cultivating a commercial quantity of marijuana;
b.The sentence imposed by the courts for those crimes of cultivating marijuana were lengthy custodial sentences notwithstanding his guilty plea in each case;
c.The second conviction for cultivating a commercial quantity of marijuana related to offending that commenced shortly after he was released from custody for the first offence and whilst he was on parole;
d.By reason of committing the further offences whilst on parole he became “a serious drug offender” within the meaning of Part 2A of the Sentencing Act (he also has a “substantial criminal record” within the definition contained in section 501 of the Act);
e.The quantities of marijuana cultivated were significant (143 cannabis plants with the cumulative weight of approximately 82 kg for the first offence and 66 plants with a weight of 48.84 kg for the second offence);
f.There were significant sentences imposed upon the Applicant for the theft of electricity in both cases;
g.There was an overall pattern of offending which reflected a continuing level of dishonesty;
h.With respect to both offences involving the cultivation of marijuana there was a failure to identify co-offenders in the first case and in both cases a lack of complete co-operation with the police in the conduct of the various interviews. This included making limited admissions and giving evasive and contradictory responses, not accepting responsibility for the offences to which he did eventually plead guilty and unsophisticated denials and lies;
i.The second offence of cultivating a commercial quantity of marijuana took place after an official warning had been given on 13 May 2011 that if he committed further offences or otherwise breached the character test in the future, his visa cancellation could be reconsidered.
In these circumstances the Applicant should be denied the privilege of staying in Australia in accordance with paragraph 6 of the Ministerial Direction.
The Tribunal concludes that the Applicant poses an unacceptable risk to the Australian community, having 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. In making such an assessment regarding the risk to the Australian community, the Tribunal has had regard to, cumulatively:
a.The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b.The likelihood of further criminal or other serious conduct, taking into account information and evidence on the risk of the person reoffending.
The Tribunal finds that there remains an unacceptable and high risk that the Applicant may engage in further criminal conduct were he to remain in Australia. In such a setting the Australian community will, as a consequence, be at risk.
On his own evidence the Applicant has used various drugs including amphetamines, marijuana and ice in the past. It was in part proffered by him as being one of the reasons why he committed some of his crimes. He had as far back as almost 10 years ago advice given to him by medical professionals that he get treatment for a number of disorders including drug and alcohol, PTSD and various other issues that have been recounted in these reasons and is contained in the evidence before the Tribunal. He has not availed himself to this advice at all or the opportunity given to him. He has not addressed the issue with his use of drugs outside the structured environment of the prison and correction system.
He has given some evidence, as have his family, of the support they will offer. They have been around in the past but it did not serve as a restraint upon his pattern of offending. He let his family down and violated their trust in him by reoffending and growing marijuana on his sister’s property apparently without telling her. This was notwithstanding the fact that his sister had given him a home over the years and, it should be recorded at a time when he was also in receipt of the Newstart allowance. Overall, the Tribunal finds that the protection of the Australian community is a consideration that weighs in favour of refusing to revoke the mandatory cancellation of the Applicant’s visa.
Given the very serious nature of the crimes committed by the Applicant and the very real prospect of future serious criminal offending, the Tribunal concludes that the Australian community would expect that the decision to cancel the Applicant’s visa would not be revoked.
There is no doubt that the Australian community would feel considerable sympathy for the Applicant in terms of his history, prior to his arrival in Australia. Any such sympathy has ultimately been outweighed if not exhausted by the pattern of offending, which was very serious and the fact that the first sentence imposed upon him by Judge Millane appears to have had no deterrent on him whatsoever. This is also amplified by his lack of co-operation with the police referred to earlier.
There are considerations that weigh in favour of revocation of the decision to cancel the Applicant’s visa. The interests of his nephews, being minor children, are limited. The principal reason they are limited is because, due to his protracted periods of incarceration, he did not have any capacity to build any real bond with them, or make any meaningful contribution to their lives. His criminal conduct in any event could not have permitted him to be any real role model in his nephews’ lives.
The Applicant’s strength, nature and duration of ties to Australia are a much stronger factor weighing in his favour. He has been in Australia for 25 years. His mother, his sisters, nephews and his daughters are present in the country. Even though his relationship with all of them has been at times minimal they are nonetheless here and they are his family. There appears little doubt that in recent times there has been a strengthening of the connection between them.
He has made a limited contribution to this country during the course of his time here by reason of his employment. He is the father of two daughters who seem to be good citizens and who will make a contribution to the nation in the future.
The extent of impediments if returned to Vietnam does weigh in favour of revoking the decision to cancel his visa. Whilst he knows the language he has lived most of his life in Australia. Apart from an uncle who he has no connection with, he has no family or other connections there. Work prospects are uncertain at best. He will be separated from his family which will be difficult.
However, the findings in favour of revoking the decision to cancel his visa do not on balance outweigh the primary considerations referred to above. Those primary considerations are generally afforded greater weight and when carefully considered in this case, are much stronger than those in favour of revocation. Therefore, the correct and preferable decision is to refuse to revoke the cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the reviewable decision is affirmed.

I certify that the preceding 130 (one hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

.............................[sgd]...........................................
Associate
Dated: 4 July 2018

Date of hearing: 18 June 2018

Counsel for the Applicant: Mr Guy Gilbert , SC

Solicitors for the Applicant: Michael J Gleeson & Associates

Solicitor for the Respondent: Mr Adam Cunynghame

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 2095

4 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Standing

Court	Date	Offence	Result/Sentence
Geelong County Court	2 August 2013	Cultivate a narcotic plant, a commercial quantity of cannabis Theft	42 months imprisonment. 8 Months imprisonment. 5 months of sentence concurrent.
Melbourne Magistrates Court	26 September 2012	Possess amphetamine	With conviction, adjourned to 25 March 2013.
Melbourne County Court	2 September 2009	Theft. Cultivate a narcotic plant, a commercial quantity of cannabis.	38 months imprisonment. 8 months imprisonment. 4 months of sentence concurrent.
Melbourne County Court	20 August 2004	Possess excisable goods (cut tobacco).	Convicted. Sentenced to 3 months imprisonment released forthwith on entering recognizance self $500.00 to be of good behaviour for 2 years.

Date of hearing:	18 June 2018
Counsel for the Applicant:	Mr Guy Gilbert , SC
Solicitors for the Applicant:	Michael J Gleeson & Associates
Solicitor for the Respondent:	Mr Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore Lawyers