Dao and Minister for Home Affairs (Migration)
[2018] AATA 1333
•21 May 2018
Dao and Minister for Home Affairs (Migration) [2018] AATA 1333 (21 May 2018)
Division:GENERAL DIVISION
File Number(s): 2018/1128
Re:Manh Hung Dao
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:21 May 2018
Place:Melbourne
The reviewable decision is affirmed.
........................................................................
Senior Member D. J. Morris
MIGRATION – request for revocation of mandatory cancellation of Applicant’s visa – Applicant has substantial criminal record and does not pass character test – discretion to revoke mandatory cancellation – Tribunal’s powers on review – assessment of risk of re-offending when sentence substantial – primary and other serious considerations under ministerial direction – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 43
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Migration Act 1958 (Cth), ss 4, 499, 501, 501CA
Migration Regulations 1994 (Cth), reg 2.52Cases
Bayley v Nixon and Victoria Legal Aid [2015] VSC 744
DPP v Dao and Tran (Unreported, County Court of Victoria, Judge Tinney, 27 June 2013
DPP v Dao and Tran [2014] VSCA 93
Falzon v Minister for Immigration and Border Protection (2018) 92 ALJR 201
Gaspar v Minister for Immigration and BorderProtection [2016] 153 ALD 337
Re HGBY and Minister for Immigration and Multicultural Affairs [2017] AATA 2824
Re HSKJ and Minister for Immigration and Border Protection [2017] AATA 1802
Isley v Minister for Immigration and Border Protection [2018] FCA 632
Re Jupp and Minister for Immigration and Multicultural Affairs [2002] AATA 458
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197
Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under Section 499 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA
Direction No. 75 – Migration Act 1958 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b)
REASONS FOR DECISION
Senior Member D. J. Morris
21 May 2018
The Applicant, Mr Manh Hung Dao, was born in March 1977 in Vietnam and is a citizen of that country. In April 1998 he entered Australia holding a student visa. He then was granted a bridging visa. The bridging visa expired in 2000. Mr Dao remained in Australia without holding a visa until he departed in September 2008. Mr Dao was subsequently granted a Class UF Subclass 309 Partner (Provisional) visa and he re-entered Australia in February 2009 to reside here with his Australian citizen wife. In 2010 a daughter was born of the marriage, and she is also an Australian citizen.
On 27 June 2013 Mr Dao pleaded guilty in the Victorian County Court to the charge of: trafficking in a large commercial quantity of drugs of dependence. He was convicted and sentenced to 18 years imprisonment. On 21 December 2015 Mr Dao’s visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (the Act). Mr Dao was invited to make representations about the possible revocation of the cancellation, and he did so. On 26 February 2018 a delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection (the Respondent) made a decision to refuse to revoke the mandatory cancellation of the Applicant’s visa under section 501CA(4) of the Act. It is this decision that Mr Dao has asked the Tribunal to review.
The hearing was held on 15 May 2018. The Applicant was represented by Mr Angel Aleksov, of counsel. The Respondent was represented by Mr Timothy Goodwin, of counsel. Mr Dao gave evidence by video-link and was cross-examined. The Applicant’s wife also gave evidence and was cross-examined. The Tribunal was assisted by an interpreter in the Vietnamese language.
The Respondent tendered a volume of documents tendered under section 501 of the Act (GD) and a volume of supplementary documents (SGD), which were taken into evidence. The Tribunal also had before it Statements of Facts, Issues and Contentions from both the Applicant and the Respondent. Other documents were also admitted into evidence.
Issues and legislation
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of the visa if Mr Dao made representations within the relevant time period provided for in the Migration Regulations 1994 (28 days in accordance with reg 2.52) and the Tribunal determines that the Applicant passes the “character test”, or, as provided for under subsection 501CA(4)(b), finds that there is another reason why the mandatory cancellation decision should be revoked.
The Respondent submitted that Mr Dao did make representations within the relevant period. Before the Tribunal was a letter from the Department of Immigration and Border Protection (as it then was) dated 18 January 2016 saying that on 21 December 2015 Mr Dao was notified of a decision to cancel his visa under section 501(3A) of the Act. The letter confirmed that, in response to an invitation, the Applicant had made representations about revocation of the cancellation decision, which would be considered.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly 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)…
…; 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.
Before the Tribunal was a National Police Certificate dated 28 January 2016 (G3, p 28) which recorded that the Applicant had appeared before Bankstown Local Court on 15 April 1999 charged with the offence of larceny. He was fined $300 for that offence. The Certificate also records that on 27 June 2013 Mr Dao appeared before the County Court at Melbourne charged with the offence of trafficking in a large commercial quantity of drugs of dependence for which he received a sentence of 18 years imprisonment. The Tribunal had before it (G4, p 29) the Reasons of Sentence of His Honour Judge Tinney dated 27 June 2013 in DPP v Dao and Tran (Unreported, County Court of Victoria). In the sentence, the Judge fixed a non-parole period of 13 years for the Applicant and for his co-accused.
Section 501(6)(a) of the Act states that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
Section 501CA then relevantly provides that:
(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.
…
(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.
Section 501(6) sets out the grounds for failing the character test. It states, in part:
(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…
Section 501(7) states, relevantly in this matter, in setting out what a substantial criminal record is:
(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…
The Respondent contended that Mr Dao has a ‘substantial criminal record’ under section 501(6)(a) of the Act. The Applicant conceded that he does not pass the character test set out in the Act.
The Tribunal finds that the Applicant fails the character test by virtue of this substantial criminal record, having been sentenced to a term of imprisonment of more than 12 months (in this case a term of 18 years imprisonment).
The sole issue before the Tribunal, therefore, is whether there is another reason why the original decision should be revoked. Relevantly, North ACJ stated in Gaspar v Minister for Immigration and Border Protection [2016] 153 ALD 337 at 345:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…
Direction No. 65
Section 499(1) of the Act provides that the Minister may give directions about the exercise of functions or powers under the Act. On 22 December 2014 the then Minister made Direction No. 65 (the Direction) which came into operation on 23 December 2014. As a body exercising such functions or powers the Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter.
Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Relevantly, the Direction includes the following principles:
(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 a 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.
In the case of deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into primary considerations and other considerations.
The primary considerations in Part C are set out in paragraph 13(2):
· Protection of the Australian community;
· The best interests of minor children in Australia affected by the decision; and
· Expectations of the Australian community.
Other considerations set out in paragraph 14(1) of the Direction include but are not limited to: International non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed.
The Direction sets out that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (paras 8(4) and 8(5)).
The contentions of the Applicant
In this matter, counsel for Mr Dao made submissions in two parts. The principal submission was that the Tribunal should set aside the mandatory cancellation of Mr Dao’s visa because he poses no threat to the community whilst incarcerated and it is not feasible to assess currently whether he may pose a risk upon any potential release. Secondly, Mr Aleksov submitted that, as an alternative, if the Tribunal was not minded to set aside the mandatory cancellation decision, the Tribunal should set aside the mandatory cancellation of the visa and remit the matter to the Respondent with a direction to re-consider the question of mandatory cancellation ‘until such time as it can be foreseen that the applicant may be released from prison’.
Mr Aleksov submitted that the Tribunal should quantify what precise risk is posed by the Applicant. He argued that the Tribunal should put aside all the evidence relating to consideration of the Direction because, for so long as Mr Dao remains incarcerated, he presents no risk of harm to the community. He argued that the Tribunal should not engage in a hypothetical exercise about what risk Mr Dao might pose to the Australian community if he was at liberty; it should instead assess what risk he presents today.
Mr Aleksov said there was ‘no basis’ on which Mr Dao’s visa should be cancelled and that any cross-examination about the Applicant’s criminality was pointless because of his present incarceration. He argued that there was so much time yet to pass before the matters relevant to be considered by the Respondent are engaged. In support of this contention, the Applicant had submitted a report provided to his solicitors by Dr Andrew Carroll, consultant forensic psychiatrist dated 5 April 2018.
Forensic psychiatrist’s report
In this report, Dr Carroll confirmed that he had not carried out an assessment on Mr Dao (he had not examined him). Dr Carroll acknowledged that he had been advised of the conviction, the length of the sentence and the non-parole period and that Mr Dao has to date served five years. Dr Carroll recited that the solicitor told him in the letter of instruction that Mr Dao is:
“classified as “low risk” and by all accounts, appears to be rehabilitated. The decision not to revoke cancellation of his visa was made because amongst other factors the delegate held concerns that the applicant was of an unacceptable risk to the community.”
Dr Carroll commented on various factors in the abstract about inmates serving long sentences and concluded that
the validity of an assessment of risk to the community eight years into the future to be low, and hence the utility of such an approach to risk assessment to be correspondingly low.
Putting to one side that the Applicant’s solicitors did not provide the letter of instruction as required by the Tribunal’s Practice Direction regarding persons giving expert and opinion evidence, Dr Carroll has had no opportunity to examine Mr Dao or assess him under any of the recognised recidivism tests. Dr Carroll has been told, baldly, that Mr Dao is classified as ‘low risk’ and ‘appears to be rehabilitated’, but these seem to be assertions of the person writing the letter. It also appears that Dr Carroll was not provided with the Direction to provide any context for the request made of him. As a consequence of these factors, and because Dr Carroll was not called to give evidence in relation to his report where he might have been able to respond to some of these questions, the Tribunal gave little weight to the abstract conclusions in this report in relation to the personal circumstances of the Applicant.
Counsel for the Applicant submitted it was ‘unlawful’ for the Tribunal to speculate about any future risk to the community and that it was too early to make any character assessment. He also submitted that he believed it was state government policy in Victoria not to grant parole to a prisoner who does not hold a visa.
The Tribunal asked the Respondent if he was aware of any impediment to the granting of parole for a non-citizen prisoner. Mr Goodwin offered to provide a note to the Tribunal and the Applicant, which was provided on 16 May 2018. It read:
An applicant who is imprisoned and has their visa cancelled due to character grounds is still eligible for parole. However, once parole is granted, the applicant will be immediately transferred to immigration detention pending the outcome of their application to have the mandatory cancellation revoked.
Accompanying the note, the Respondent provided the High Court decision in Falzon v Minister for Immigration and Border Protection [2018] 92 ALJR 201, however that case was about whether detention after release from parole constituted improper conferral of judicial power of the Commonwealth, and the Tribunal found it of limited relevance.
Also on 16 May 2018, the Applicant provided, in response, the recent Federal Court decision of Kerr J in Isley v Minister for Immigration and Border Protection [2018] FCA 632. That judgment does not support the contention that parole is not granted to non-citizen prisoners in Victoria (where Mr Isley was in prison). As His Honour said, at [86]:
…I understand Mr Isley to accept that he could have been processed for release at the expiry of his non-parole period had he been willing to accept his removal from Australia. Accordingly, Mr Isley could have abandoned these proceedings and been released into immigration detention pending arrangements for his repatriation to the United Kingdom.
I find that there is no evidence before the Tribunal that a non-citizen prisoner, otherwise granted parole through the relevant state correctional processes, would not be released into immigration detention for removal from Australia.
In support of the contention that a decision-maker cannot assess Mr Dao’s risk other than by engaging in speculation and that such speculation was not open as a matter of law, Mr Aleksov drew the Tribunal’s attention to the judgment in Bayley v Nixon and Victoria LegalAid [2015] VSC 744, at [68] where Bell J stated:
I expressly decline to go into consideration for and against whether Mr Bayley would be granted parole in about 40 years. The parole authority at the time will have to exercise its discretion in this regard upon the facts and circumstances then obtaining. In my view, it is simply not possible to make a reasonably informed judgment now about what the facts and circumstances will be so far in the future and how the authority will then exercise its discretion. With respect, such a consideration is no more than mere speculation. I reject VLA’s submission that it can speculate upon this matter in the proper exercise of its statutory discretion. I think it is the antithesis of proper to exercise a statutory discretion by reference to an opinion about a matter that is not capable of reasonably informed judgment.
The Tribunal does not find this decision on point in this matter. In the case of the notorious criminal Bayley, he will be in prison for 40 years before becoming potentially eligible for parole, and is more than likely to die there. In the case of Mr Dao, he becomes eligible to be considered for parole in July 2024, around six years. The facts are completely different.
The powers of the Tribunal in regard to a decision
Mr Aleksov submitted that the Tribunal could set aside the delegate’s decision so that there is no decision in regard to the revocation. He submitted that it would be within the power of the Tribunal to make such a decision. In relation to this contention, the Tribunal drew his attention to section 2A(b) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), which states:
2A Tribunal’s objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
…
(b) is fair, just, economical, informal and quick; …
The Tribunal also noted that section 43(1) of the AAT Act states:
Tribunal’s decision on review
(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions of recommendations of the Tribunal.
The Applicant’s written submission contended:
The Tribunal, stepping into the shoes of the delegate, has power to remit this matter to the delegate for reconsideration, with a “direction” or “recommendation” that a decision not be made in this case until such time as the applicant approaches a potential release date: s 43(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth). It should do so.
In oral submissions at the hearing, Mr Aleksov argued that the context of the wording in section 2A(b) of the AAT Act supported this contention, as the words “fair” and “just” appear before use of the word “quick”. Accordingly, he argued that affording the Applicant an expeditious review was only one factor to consider amongst several, and deferring the ultimate decision in favour of a more just outcome would take precedence. The Tribunal accepts the view that providing a means of a ‘quick’ review should be read as only one part of the objectives and, additionally, only one of those adjectives listed in section 2A(b), but considers that the construction of the subsection does not give them unequal weight, one to the other. It is unarguable that an aim for speed alone should not lead as a consequence to a review that was unjust or unfair to a party, but the Tribunal takes the view that to make some direction, as was suggested by counsel, that could leave an applicant who is an unlawful citizen who has properly applied for a review but then been denied any outcome by the Tribunal, would be completely unsatisfactory.
The Tribunal accepts that the power set out in section 43(1)(c) is broad-ranging, but finds that the power to make directions must be read in the context of the first limb of the subsection that is within the context of the relevant enactment, which in this case is the Migration Act 1958. That Act sets out, at section 4, its Object. Relevantly, section 4(1) states:
(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens;
(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.
If the Tribunal were to accept the Applicant’s submission in this regard, it would be inconsistent with the object of the Act under which the reviewable decision was made. Mr Dao having made an application to the Tribunal for a merits review of the mandatory cancellation of his visa, as provided for in the Act, is entitled to have a due, but also an expeditious, consideration of his application and to a decision to affirm the reviewable decision or to set it aside. That is also an approach consistent with the objective of the Tribunal as set out in section 2A above. The Tribunal cannot, in this matter, direct that the decision on whether to cancel Mr Dao’s visa be deferred until some unfixed date in the future. I do not accept this submission that, in effect, the Tribunal should make a decision that a decision not be made. It would be repugnant to the role of the Tribunal and inconsistent with the Act, and as a collateral consequence, as I say above, could leave the Applicant in a legal limbo for an indefinite period.
The Tribunal now turns to consideration of whether or not to revoke the mandatory cancellation of Mr Dao’s visa by considering, as required under section 499(2A) of the Act, the relevant considerations within the Direction.
Primary consideration: Protection of the Australian community (13.1)
The Direction sets out that the Tribunal should give consideration to the nature and seriousness of the non-citizen’s conduct to date and 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 conduct (13.1.1)
The Tribunal had before it Judge Tinney’s Reasons for Sentence. His Honour was aware of Mr Dao’s previous conviction for larceny, which is referred to above, but stated that this minor criminal history did not play any role in his consideration of sentence. The Tribunal also finds that this offence is not relevant to this consideration because it does not agitate section 501(6)(a) of the Act.
His Honour set out the circumstances that led to the arrest of Mr Dao and his co-accused. The Applicant was in a car park in Maribyrnong at about 4.20 a.m. on 13 July 2011. Mr Dao was standing with his wife and with the co-accused near two motor vehicles, a BMW and a Toyota, when a police car approached. The police officers stopped because the group appeared to be acting suspiciously. The Judge said, paragraph [11]:
The BMW was registered to your mother in law, Mr Dao. It was searched at the scene, and it contained what was a massive quantity of drugs of dependence, both heroin and methylamphetamine…Each drug was in a quantity many times over the large commercial quantity for the given drug.
…
[15] I see no need to descend to greater detail as to the facts but conclude by indicating that there was a total of some 31.9 kilograms of high purity heroin and 6.657 grams of methylamphetamine; that is a mixed weight I am talking of there.
The Tribunal notes that in the police interview (SGD1, p 23), the interviewing officer also stated that a large sum of money, estimated at that time to be $70,000 in cash, was in the suitcases. The Tribunal notes that a police officer who attended the scene that evening provided a written statement (SG1, p 53) which stated that also found in the BMW was a set of kitchen scales, a heat sealer for plastic bags and that the white powder in both suitcases was in individual small bags.
His Honour went on to discuss evidence given by a scientist on the plea about the level of purity of the mixtures and a valuation provided by a police officer with relevant expertise in that area on what could be obtained if the drugs were diluted and sold on what was described as a ‘street level of purity’. His Honour detailed the breakdown of the street value of the heroin and the methylamphetamine, which it is not necessary to reproduce here. Relevantly, he concluded, at [23]:
So figures from wholesale dispositions would produce a range of around $11,500,000 to $17,000,000, and street level transactions, a range spanning $25,000,000 to $47,000,000. This was a massive haul of drugs. Your own counsel, Mr Dao, said it was worth an enormous amount of money. He was right. In any form, however sold, it was worth many, many millions of dollars, and ultimately of course would have provided several hundred thousand deals or “hits” at street level with untold misery and impact upon the end user and our society.
His Honour also concluded on the scientific evidence that the drugs trafficked by the Applicant were in a quantity over 30 times the large commercial quantity. The Judge noted that the sentencing regime provided under the Drugs, Poisons and Controlled Substances Act1981 (Vic) is quantity based and stated that:
The fixing of a maximum penalty of life imprisonment clearly places the offence in the highest category of seriousness of criminal offending along with the crime of murder.
In his evidence at the hearing, Mr Dao was asked whether it was correct that he had pleaded guilty in 2013 to trafficking in a large commercial quantity of drugs. He replied that was so, but that he “had no choice”. When pressed on this, Mr Dao said the drugs found in his mother in law’s car by the police on the night he was arrested were not his and when asked by Mr Goodwin whether he thought he was innocent for the crime for which he was serving a prison sentence (and for which he had pleaded guilty), Mr Dao replied “that is correct”.
Much of Mr Dao’s evidence to the Tribunal was either evasive or inconsistent with what he had told the police when arrested or with other facts set out in the papers before the Tribunal, in particular the Reasons for Sentence. He told the Tribunal he did not have an interpreter when he was first interviewed by the police on the day of his arrest. However, in the transcript before the Tribunal, it is clear that the interview was suspended soon after it commenced and an interpreter attended when it resumed in substance.
When the Tribunal directly asked Mr Dao whether he recalled the sentencing Judge referring to the large amount of drugs found in the car, the Applicant said he did not understand much of what His Honour said because he did not have an interpreter at the time and his English was not good. However, when the Tribunal drew to his attention the passage at the end of the Reasons for Sentence where His Honour thanked the interpreters for interpreting when he had spoken for so long, Mr Dao simply said he “didn’t know about that.”
When the Tribunal asked Mr Dao about the quantum and serious nature of the drugs found with him that night, he said that he didn’t know that information “at that time”. The Tribunal pointed out that the police told him at the first (interpreted) interview he had on the day of his arrest knew what the drugs were and that there appeared to be “around 20 kilograms” of heroin (an underestimate, as it turned out).
Mr Aleksov stated in his closing submissions that he could not cavil with the conclusion that the Applicant had given an inconsistent account of his involvement in the crime. The Tribunal would go further and finds that Mr Dao was deliberately evasive and unresponsive to many questions asked of him by the Respondent and by the Tribunal.
Overall, given the significant quantity of drugs involved in the attempted trafficking and taking particular note of the sentencing remarks relating to the gravity of the offence, the Tribunal finds that Mr Dao’s crime was extremely serious and is undoubtedly at the higher range of offences to be considered when applying the Direction. This consideration therefore weights strongly against non-revocation of the visa cancellation.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)
Counsel for the Applicant in written submissions and in oral argument to the Tribunal contended that the delegate had acted “unlawfully” in considering the part of the Direction which states, at paragraph 13.1(2)(b) that decision makers are to take into account The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
As Mr Dao is in prison and is not due to be considered for parole until 9 July 2024 (G29, p 423), Mr Aleksov submitted on the Applicant’s behalf that there was no risk to the community. As a consequence, because there was no risk, it follows that all the other parts of the Direction should, in effect, be read beneficially in regards to revoking the mandatory cancellation of the Applicant’s visa.
The Tribunal finds that this submission is a misreading of this part of the Direction. Paragraph 13.1(2)(b) is not couched in terms of a decision-maker making an assessment of current risk. Most non-citizens to whom the Direction applies, particularly in regard to requests to revoke a mandatory visa cancellation, will be either in prison or in immigration detention. Paragraph 5 of the Direction sets out what the Direction comprises and that the purpose of the instrument is to provide a framework within which decision-makers should approach their task of deciding whether to, in this case, revoke a mandatory cancellation under section 501CA. If the Tribunal accepted the Applicant’s submissions that only current risk is to be assessed and that a non-citizen poses no risk in custody and that, as a consequence, therefore all the other parts of the Direction fall away or should essentially be read down, the Tribunal would be vacating its responsibility under section 499 to apply the Direction. This submission is rejected.
As I have said above, Mr Dao’s evidence at the hearing was inconsistent and evasive. He at several times expressed the view that he was scared of possible consequences to his wife and family resulting from him giving evidence, but was inchoate about the source or nature of any possible harm.
In terms of the extent of Mr Dao’s involvement in the drug trafficking, the Tribunal cannot look behind the Applicant’s conviction for a serious crime. That has been made clear by numerous authorities, notably the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197. Mr Aleksov submitted that the Tribunal also cannot make a conclusion regarding any possibility of Mr Dao’s broader involvement in the criminal activity because the sentencing Judge also could not make a conclusion in that respect.
His Honour said, at [39], addressing both Mr Dao and his co-accused:
…But what is your role in all of this? The short answer is that you will not tell me. Again, that is your right. But what is your link to those other players? Where do you sit in this business hierarchy? How came you to possess the drugs and why, and from whom? What was your financial reward or expectation of financial reward? What link did you, Mr Dao, have with other players, and what of you Ms Tran? What link do you have to each other? You, Ms Tran, were separated from your husband and had been for some time. Why were you out in the car park on the day in question in two cars, with these drugs, and with the cash as well? Why were you with Mr Dao?
[40] You have each decided not to instruct your counsel in these areas, or at least not to permit them to inform the court in any of these areas. Counsel submits that the Court can draw some inferences in your favour, namely that you were merely involved in the movement or transit of the drugs courtesy of the events the day before. Even if I was able to accept that suggestion, what would it really say as to your placement in any given hierarchy?
[41] The fact is neither of you have chosen to give evidence on this topic or to in any way explain your trafficking in these drugs. Neither of your interviews are in any way relied upon as being truthful or helpful or providing any factual basis for your acts.
The Tribunal accepts the submission from Mr Aleksov that it cannot make any other assessment than did His Honour on the extent of Mr Dao’s involvement.
However, and relevantly, Mr Dao and his co-accused appealed to the Victorian Court of Appeal that his sentence was manifestly excessive, and the Court of Appeal considered, among other grounds, whether his role in the criminal hierarchy was ‘limited’. In DPP v Dao and Tran [2014] VSCA 93, Nettle JA (with whom Redlich and Priest JJA concurred), stated, at [17]:
Much of the argument before us appeared to assume that an offender who is caught trafficking in a vast, large commercial quantity of narcotics, and chooses to remain mute as to the level and extent of his or her involvement, is entitled thereby to dictate that he or she be sentenced as if they were no more than a hapless courier. That assumption is misconceived. The law does not afford large commercial quantity drug traffickers the option of plumping for a mean or median sentence as some sort of default position. An offender is entitled to say nothing and, if it be the case, to rely on the fact of there being no evidence of aggravating factors. But, if an offender makes that choice, and there is not otherwise acceptable evidence of mitigating circumstances, the judge is bound to proceed on the basis that there are not mitigating factors of which evidence might have been given.
This matter is about whether or not Mr Dao should hold a visa. It is not a re-trying of his criminal case. To the extent that there might be relevant circumstances that surround the conviction that provide another reason why the mandatory cancellation of the visa should be revoked, the Applicant did not provide any acceptable evidence at this hearing. Accepting the fact that Mr Dao pleaded guilty to a most serious trafficking offence, the Tribunal simply does not know whether he was part of a drug syndicate or whether this was the first time he had become involved in this criminal activity.
In considering the risk to the Australian community, the Tribunal is required by the Direction to 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 (nothing that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Regrettably for the Applicant, the lack of information, coupled with his lack of candour and inconsistent responses to questions directly put to him, does not assist him in the Tribunal’s assessment of likelihood of re-offending. It is noted in the papers before the Tribunal that Mr Dao might be termed a model prisoner. There is a large amount of reports from prison officers and other personnel that he is well-behaved and co-operative in prison. He has spent his time since being incarcerated productively, not only working in the prison environs, learning skills and trades, but also in undertaking a large number of courses for his own personal betterment and to equip him for employment on release. This is to his credit. He provided to the Tribunal several statutory declarations relating to his character. A number of them were written in support of him by fellow inmates. One of them, Mr Samuel White, wrote:
Manh has often expressed to me he is remorseful for his crimes. He told me that “if he could take it back he would”.
When pressed about this remorse, Mr Dao repudiated Mr White’s statement. He told the Tribunal that he did not tell Mr White this and that he had not told his fellow inmates about the nature of the crime for which he is serving his sentence.
Before the Tribunal was a statutory declaration from Mr John Falcone who stated that he has known the Applicant’s wife since 2006 and met the Applicant after they married and has frequently dined with them both. Mr Falcone wrote:
I know that he now understands the severity of his actions and is genuinely repentant. I made him aware that our laws do not allow for such behaviour and that he is lucky he does not reside in Vietnam, Thailand or Singapore otherwise he would be in a much more dire situation.
Mr Dao said that he did not remember Mr Falcone saying that to him and in a direct question from the Tribunal responded that he had not spoken to Mr Falcone since he has been in prison. The Tribunal makes the point that this does not affect the truthfulness of what Mr Falcone declared, because Mr Falcone did not say that he said it directly to the Applicant. However, in Mr Dao’s response he also did not accept an invitation from the Tribunal to accept that he was remorseful or acknowledge the seriousness of what he had done.
In the Full Court of the Federal Court of Australia decision in Moana v Minister for Immigration andBorder Protection [2015] FCR 367, Rangiah J stated, at [72]:
…It is implicit in s 501 that Parliament considers that a person who does not pass the character test poses a risk of harm of some kind, although that does not lead to a presumption that the discretion should be exercised in a particular way. In a particular case, however, the Minister may take the view the seriousness of the offence or conduct means that any risk is intolerable…
(Emphasis added)
When faced with Mr Dao’s apparent lack of acceptance that he had committed a most serious crime, and with no engagement with remorse, together with a feature constant from the time of his arrest through to his plea of guilt and this hearing, that he has chosen not to explain the extent or nature of his involvement in the trafficking and extended hierarchy, the Tribunal finds that a risk clearly exists to the Australian community of the Applicant re-offending on release, and, given the serious nature of the offence (compared by the sentencing judge to murder) and murkiness surrounding it, that any such risk is unacceptable.
Primary consideration: Expectations of the Australian community (paragraph 13.3)
Counsel for the Applicant, in written submissions, suggested that a decision-maker, in considering this primary consideration, should act according to their own judgment, values and experience and then “perhaps cross-reference that outcome against what might be thought to be the community’s expected outcome in the circumstances of such a case”. The Applicant questioned on what rational basis can it be said that some uniform expectation can be attributed to the Australian community and suggested that it would be ‘unwise’ to place any weight on this factor.
In the recent Federal Court decision YNQY v Minister for Immigration and BorderProtection [2017] FCA 1466, in considering this particular part of the Direction, Mortimer J held:
In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
The Tribunal, with respect, agrees with the conclusions of Her Honour in this respect. This part of the Direction attempts to set out what would be the likely factors that the Australian community, as a whole, would expect to be taken into consideration in deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, but it is still a stipulation in a statutory instrument rather than some objective assessment. However, it is a consideration in an instrument that a decision-maker is bound to take into account.
An attempt to frame this element of the decision-maker’s consideration was made by Deputy President Block in Jupp and Minister for Immigration and Multicultural Affairs [2002] AATA 458, referring to the version of the Direction in force at that time, which used broadly similar wording in this respect:
(m) Clause 2.3(b) (read with 2.12) is always difficult to interpret. It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into that Australian community, knowledge of the evidence before me. If told only and concisely that a person incarcerated for armed robbery was seeking to come to live in Australia, there might well be a general view that this should not be allowed. On one facile view, these are the facts in this case. They entirely ignore the fact that the event happened nearly 20 years ago, since which time there has been a complete rehabilitation transforming a young drug-addicted person into a responsible family man. I believe that the Australian community, so informed, would expect me to interpret the Direction in a humane fashion.
I agree with this conclusion that the Australian community does not ‘think as one’. I also agree that the Australian community are, on the whole, generous-minded and willing to support efforts of rehabilitation. But the inescapable fact is that, objectively, members of the Australian community would assess the facts in each case, before coming to a conclusion.
In Mr Dao’s case, he has pleaded guilty to trafficking in a quantity of illicit drugs 30 times greater than a large commercial quantity, as defined in the relevant state law. He has failed to show any overt remorse and, in spite of pleading guilty and not instructing his counsel about the circumstances that led to his involvement in the crime, continues to protest his innocence. Had the contents of the two suitcases found in the possession of Mr Dao and his co-accused been diluted and sold on the street, the drugs would have wreaked, as Judge Tinney aptly said, misery.
Mr Dao refused to engage with the fact that the sale of the drugs would have led to significant harm to tens of thousands of people, directly and indirectly, given the close correlation between other violent crimes to people obtaining funds for illicit drugs. As noted His Honour likened the seriousness of the crime to murder. It is a very reasonable conclusion for the Tribunal to make that to release this amount of heroin and ice would have led to, or contributed to, death of addicts and to other members of the Australian community becoming addicts. Given the exceptionally large amount of pure drugs involved, that conclusion is not extravagant. The offence for which Mr Dao pleaded guilty and was sentenced is not a crime such as armed robbery or even serious assault, where there is an identifiable victim. The ‘victim’ in this crime is Australian society itself.
The Tribunal considers that the Australian community would view the conduct of Mr Dao very unfavourably. This consideration weighs heavily against revocation of the mandatory cancellation of Mr Dao’s visa.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 13.2)
The Applicant and his wife have a daughter. She was born at the end of November 2010 and is an Australian citizen. She was around seven months old when Mr Dao was arrested. His daughter is now seven. There was evidence before the Tribunal (SGD2, p 218, and telephone call records) that the Applicant’s wife speaks to Mr Dao daily by telephone and they visit him in prison every two to three weeks, and more frequently since he moved to a prison closer to Melbourne. It is to the Applicant’s wife’s credit that she has attempted over the last several years to maintain as regular a sense of family as she can, in such difficult circumstances, so that their daughter can interact with her father.
The Applicant’s wife told the Tribunal that, because she was studying and having to work to pay off legal fees relating to her husband’s offence, she had sent their daughter to Vietnam to be cared for by her aunts for some three years or so, and she returned to begin primary school. The Tribunal notes that the SGD documents indicate Mr Dao told prison authorities his daughter was actually being cared for by his parents, but that is not a significant discrepancy since there is evidence Mr Dao’s father has been in poor health. Mr Dao in his written statement to the Tribunal said that, if he is deported from Australia, his family would “have to uproot and return to Vietnam with me”. When asked about this at the hearing, the Applicant’s wife said she did not want to leave Australia and did not want to think about that eventuality. That is understandable.
While the Tribunal considers that the Applicant’s daughter has spent a large proportion of her young life in Vietnam and would therefore find it easier to acculturate if she returns there to live, she was born in this country, is an Australian citizen and her maternal grandparents live here. Her opportunities for employment and education are relatively greater in Australia. The Tribunal finds that it would be in the best interests of the Applicant’s daughter for the mandatory cancellation decision to be revoked.
Other consideration: international non-refoulement obligations (paragraph 14.1)
Mr Aleksov said that the Applicant fears that harm may come to him and his family in Vietnam and that this engages Australia’s protection obligations as they arise in international law and under the Act.
On 5 September 2017 the Minister for Immigration and Border Protection made Direction No. 75 and this Direction took effect on 6 September 2017. Relevantly, Part 2 of Direction No. 75 says:
In considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out below.
1) The decision-maker must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns. Where a decision-maker finds the claims do not meet the refugee or complementary protection criteria, the decision-maker must refuse to grant the visa.
In HGBY and Minister for Immigration and Border Protection [2017] AATA 2824 Member Kennedy stated at [157]:
It is now settled that I must assess any international non-refoulement obligations that might arise if HGBY is returned to Country A. In this regard, the Full Court in Minister v BCR16 [2017] FCAFC 96 set aside a decision of an Assistant Minister who had followed the approach set out in the Direction, albeit not bound by the Direction itself, to the effect that it was considered unnecessary to determine whether non-refoulement obligations are owed to a non-citizen where that non-citizen could make a valid application for another visa, relevantly, of course, a protection visa.
The Tribunal in that case went on to say that his assessment of this consideration would, necessarily, be abridged. Relevantly, Deputy President Kendall said in HSKJ and Minister for Immigration and Border Protection [2017] AATA 1802, at [89]:
In assessing any non-refoulement obligations, the Full Court has previously noted that the level of analysis required by the Tribunal is less than that required in assessing a claim for a Protection visa. Relevantly, in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 in relation to a s 501 refusal, the Court found (at [28]):
An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s non-refoulement obligations.
I agree with this approach. It is necessary for me to consider this consideration in Direction No. 65 but the scope of that consideration is limited to the material that is before me.
There was no evidence before the Tribunal that Mr Dao was a member of any ethnic group ‘which is particularly at risk’. In his written statement, the Applicant asserted that his co-accused (who was also sentenced to 18 years’ imprisonment on the same day as Mr Dao) had friends in Vietnam and there was a ‘real possibility’ these people would want to harm him if he returned to Vietnam and, potentially, also harm his wife and child.
Mr Goodwin pressed Mr Dao about the nature of this harm, given that he pleaded guilty, as did his co-accused, and that Mr Dao gave no evidence against her. Mr Dao was unforthcoming other than to say that a fellow inmate had named a person in Vietnam who was allegedly a crime boss who is dangerous. Mr Dao did not articulate at the hearing whether any threats had been made against him and agreed that his daughter had been safe when she was returned to reside in Vietnam for some three years by the Applicant’s wife, but that the circumstances of the family meant he had no choice in agreeing to this.
Mr Aleksov drew the Tribunal’s attention the Department of Foreign Affairs and Trade’s Country Information Report for Vietnam. He also tendered a US Department of State report which concluded that the Vietnamese police force had a high level of corruption. However, he did not make submissions that married this assertion to either a specific or a general threat relating to the Applicant. In the absence of any specific information on potential threats to the Applicant, I cannot take this ‘other’ consideration further in this review. It weighs neither for nor against revoking the mandatory cancellation of the Applicant’s visa.
Other consideration: Strength, nature and duration of ties (paragraph 14.2)
As mentioned above, Mr Dao came to Australia as a student in 1998. When his then visa expired in 2000 for the next eight years he was in Australia illegally. He said he undertook various forms of seasonal work and then, after he met his wife and married, returned to Vietnam so that he could apply for a spouse visa to re-enter Australia legally.
Mr Dao is now 41. He has spent roughly half his life in Australia but the period from 2000 to September 2008, when he was here unlawfully, is, because of that fact, to some extent discounted in terms of the nature of his ties to this country in that period, noting that he did remedy this by departing Australia and later re-entering lawfully. It is true that, apart from the minor larceny offence, there was no other evidence of offending by the Applicant until 2011. There was scant evidence before the Tribunal that the Applicant has contributed positively to Australia in terms of holding steady employment or undertaking other community service.
The Tribunal finds that this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Other consideration: Impact on Australian business interests (paragraph 14.3)
No evidence was advanced by the parties about this consideration. The Direction suggests that an employment link of a non-citizen will generally only be given weight where non-revocation would significantly compromise the delivery of a major project or important service in Australia. The Tribunal finds this consideration weighs neither for nor against the Applicant.
Other consideration: Impact on victims (paragraph 14.4)
There was no evidence before the Tribunal that this consideration was relevant. The impact on potential victims, had the trafficked drugs hit the streets, has been dealt with above.
Other consideration: Extent of impediments if removed (paragraph 14.5)
Mr Dao gave evidence that his parents still live in Vietnam, as does his sister, with whom he is not close. The Applicant’s wife gave evidence of other family members, on her side, who live in Vietnam and with whom she presumably is close because she and her husband entrusted these relatives with the care of their daughter for three years.
It is notable that the sentencing Judge recited that Mr Dao had an unremarkable background in Vietnam and was educated to a reasonably high level, reaching the equivalent of VCE and then undertaking some tertiary study in Information Technology before travelling to Australia in 1998. Mr Dao confirmed this background to the Tribunal. He also confirmed that he is fluent in Vietnamese and in good health. Apart from the fact that his father has been in poor health, no evidence was put before the Tribunal that the Applicant would not have the usual support available to citizens in that country or that his parents would not provide some support if he was repatriated.
The Tribunal considers that there are no notable impediments if Mr Dao is returned to his country of citizenship. In fact, it is reasonable to consider that his employment prospects have been enhanced by the number of courses he has undertaken whilst in prison and his dedication to learning English. The Tribunal finds that this consideration weighs in favour of not revoking the mandatory cancellation of the Applicant’s visa.
Conclusion
At the beginning of July 2011 Mr Dao’s circumstances were that he had a young baby and a loving wife who was studying to acquire skills. By her account, he was an attentive father to their infant child. He was married to an Australian citizen and had only one minor offence to his name. I conclude, had he continued along this course, he would have been granted citizenship when the time came to make such an application. However, he decided to become involved with serious drug-trafficking. The consequences to him and his family have been devastating. Mr Dao’s criminal behaviour is completely unacceptable conduct by any person, whether or not the person is a citizen, and he was rightly sent to prison for a significant term after he admitted guilt for a heinous crime. However he remains at one end of the scale either oblivious of, or, at the other end, indifferent to, the gravity of his serious crime and the consequences of this nature of criminal activity to Australia. Counsel for the Applicant submitted that the principles set out in the Direction did not form part of what a decision maker should consider. That is wrong. Paragraph 5 of the Direction makes clear that the Preamble, which includes the principles, is part of the Direction. Paragraph 6(4) states:
In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were 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.
I find that, because of the magnitude of the value of the illicit drugs the Applicant pleaded guilty of trafficking, this case falls into the category contemplated in this paragraph. The Tribunal also concludes that the primary considerations in the Direction of the protection of the Australian community and the expectations of the Australian community, which weigh heavily against the Applicant, and the lack of any other reason to revoke the mandatory cancellation decision which might outweigh those factors, means that the correct and preferable decision is to refuse to revoke the cancellation of Mr Manh Hung Dao’s visa.
DECISION
The Tribunal affirms the decision under review.
98. I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
.............................[sgd]...........................................
Associate
Dated: 21 May 2018
Date of hearing: 15 May 2018 Counsel for the Applicant: Mr Angel Aleksov Solicitors for the Applicant: Nevett Ford Lawyers Counsel for the Respondent: Mr Tim Goodwin Solicitors for the Respondent: Sparke Helmore
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