Diep and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1319

Diep and Minister for Immigration and Border Protection (Migration) [2017] AATA 1319 (21 August 2017)

Division:GENERAL DIVISION

File Number:2017/3452           

Re:Van Hiep Diep  

APPLICANT

Minister for Immigration and Border ProtectionAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:21 August 2017 

Place:Sydney

The Tribunal affirms the decision under review.

........................[sgd]............................................

Dr L Bygrave, Member

CATCHWORDS

IMMIGRATION – Migration Act 1958 – mandatory visa cancellation – character test –serious criminal offence – protection of the Australian community – best interests of minor grandchildren – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if removed – decision affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 499(2A), 501(3A), 501(6)(a), 501(7), 501CA(4)

SECONDARY MATERIALS

Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Dr L Bygrave, Member

21 August 2017 

INTRODUCTION

1. The applicant, Mr Van Hiep (Hien) Diep, is a 69 years old citizen of Vietnam who first arrived in Australia in 1991 on a class BF subclass 200 refugee visa (refugee visa).

2. On 21 January 2016, the applicant’s class BB subclass 155 resident return visa (resident return visa) was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (the Act) because he had been sentenced to a term of imprisonment of seven years on 20 December 2013.

3. On 15 February 2016, the applicant lodged a ‘Request for Revocation of a Mandatory Visa Cancellation Under S501(3A)’.

4. The Minister’s delegate decided not to revoke the cancellation decision on 8 June 2017. The applicant subsequently filed an application with the Tribunal seeking a review of this decision.

5. The Tribunal heard the matter in Sydney on 10 August 2017. The applicant attended the hearing in person; he had legal representation and was assisted by an interpreter of the Vietnamese language. The applicant and his daughter, Ms Huynh Thi Diep, gave evidence to the Tribunal.

   BACKGROUND

6. There is limited information before the Tribunal in relation to the applicant’s life in Vietnam and Australia. The following is collated from brief written statements provided by the applicant, the sentencing remarks of Judge Zahra on 20 December 2013, and the applicant’s evidence to the Tribunal. The Tribunal observes there is inconsistency in some dates and events but accepts that this does not affect the overall validity of the evidence.

7. The applicant was born in Vietnam in 1948. His history in Vietnam is described as follows:

   His parents were shopkeepers and he described a happy childhood. He left Vietnam with his wife and children during the Cambodian-Vietnamese War. He lived in a refugee camp in Malaysia for two years before migrating to Adelaide.

   …

   [He] completed four years of education in Vietnam and is literate in Vietnamese. Before leaving Vietnam he worked in his family’s shopkeeping business.[1]

   [1] Exhibit G, p AGS 28.

8. The applicant arrived in Australia in 1991 with his wife and eight children. He later divorced his wife and one of his sons passed away in 2008.

9. Between 1992 and 2000, the applicant worked as a farmer and he worked as a furniture maker from 2001 to 2003.[2]

   [2] Exhibit G, p AGS 69.

10. In June 2000, the applicant was ‘hit on the head with a wooden plank in an assault’ and suffered ‘persistent local pain and recurrent headaches, major depression and anxiety’.[3] The applicant subsequently received the disability support pension due to impairment suffered from the assault.

    [3] Exhibit A2, Report by Dr Phuoc Le Cong 29/3/2002.

11. The applicant currently has seven children and 18 grandchildren who all reside in Adelaide. At the Tribunal hearing, the applicant affirmed his elderly mother resides in Vietnam. The applicant’s daughter gave evidence that her father is one of ten siblings, many of whom still live in Vietnam with their children and grandchildren.

12. The applicant spent significant periods of time in Vietnam between 2005 and 2012. His immigration records show he travelled between Australia and Vietnam 18 times for periods from six weeks to four months from September 2005 until his arrest in Australia on 8 December 2012.[4] The applicant told the Tribunal he spent time in Vietnam visiting his elderly mother, siblings and his second wife. He also created a memorial for his deceased son and stayed at a temple in the mountains.

    [4] Exhibit G, pp AGS 72 – AGS 75.

    Criminal record

13. The applicant’s National Police Certificate dated 20 April 2017 records his offence as:

    ·20 December 2013: conviction in the Downing Centre District Court of the offence ‘Import/export marketable quantity of border controlled drugs or plants’ – sentenced to imprisonment for seven years with a non-parole period of four years.[5]

    RELEVANT LEGISLATION AND ISSUES

    [5] Exhibit G, p AGS 18.

    The power to revoke a visa cancellation

14. Pursuant to section 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test. A person is taken to not pass the character test if he or she has a ‘substantial criminal record’. A person who has been sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’ as defined in sections 501(6)(a) and (7) of the Act.

15. Under section 501CA(4) of the Act, the Minister (and therefore the Tribunal on review) has the discretion to revoke the original cancellation decision if the Minister is satisfied that the person passes the character test or ‘there is another reason why the original decision should be revoked’.

16. The applicant has a ‘substantial criminal record’ and so does not pass the character test. This is accepted by the applicant.[6]

    [6] Applicant’s Statement of Facts, Issues and Contentions dated 21 July 2017, para 26.

17. The Tribunal must therefore consider whether there is another reason to revoke the original cancellation decision.

18. When considering whether to revoke the cancellation decision, the Tribunal is required under section 499(2A) of the Act to have regard to the guidance contained in Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).

19. The Direction sets out the policy of the government and includes a number of introductory statements including the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in Australia.

20. The Principles set out in clause 6.3 of the Direction provide a framework to approach deciding whether to cancel a visa. The Principles state:

    (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 forfeit the privilege of staying in Australia.

    (4)  In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)  Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)  Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in Australia.

    (7)  The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-­citizen’s visa should be cancelled, or their visa application refused.

21. Informed by the Principles, the Tribunal must take into account the factors set out in Part C of the Direction in determining whether to revoke a mandatory cancellation of a non-citizen’s visa under section 501CA of the Act. The primary considerations are:

    (a)protection of the Australian community from criminal and other serious conduct;

    (b)best interests of minor children in Australia affected by the decision; and

    (c)expectations of the Australian community.

22. Part C also sets out other considerations which must be taken into account. Other considerations relevant to this matter are:

    (a)strength, nature and duration of the applicant’s ties to Australia; and

    (b)extent of impediments if the applicant is removed from Australia.

23. Clause 8(2) of the Direction stipulates that information and evidence from independent and authoritative sources should be given appropriate weight in applying the primary and other considerations.

    Protection of the Australian community

24. Clause 13.1(2) of the Direction states the Government’s commitment to protecting the Australian community from harm by non-citizens and requires that the Tribunal consider:

    (a)the nature and seriousness of the applicant’s conduct to date; and

    (b)the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

25. The Tribunal first considers the nature and seriousness of the applicant’s conduct to date.

26. The applicant’s criminal record consists of a single offence committed on 8 December 2012. The sentencing remarks of Judge Zahra on 20 December 2013 noted the applicant pled guilty on 19 June 2013 for the count of:

    On 8 December 2012, at Sydney International Airport, Van Hien DIEP did import a marketable quantity of a border controlled drug, namely heroin, contrary to Section 307.2(1) of the Criminal Code (Commonwealth).[7]

    [7] Exhibit G, p AGS 19.

27. The sentencing remarks set out an agreed statement of facts that are summarised below:

    ·On 8 December 2012, the applicant arrived at Sydney International Airport and was selected by customs officers for a full luggage examination.

    ·The applicant’s carry-on baggage contained 47 ‘LUX’ brand packages of soap that returned a presumptive reading for the presence of heroin. He told customs that a friend had given him the soap, it was ‘very good for washing hair’, and he was going to give some to his daughter and brother.

    ·The applicant declined to participate in a recorded interview because he was unable to obtain legal advice. He was later arrested, taken to Mascot police station and charged.

    ·On 18 December 2012, Australian Federal Police deconstructed and analysed the 47 soap packages; the total weight of pure heroin was calculated at 1.396 kilograms with a street value of between $1.4 million and $1.45 million.[8]

    [8] Exhibit G, pp AGS 21 – AGS 22.

28. The applicant’s evidence to the Tribunal was consistent with the sentencing remarks of Judge Zahra. The applicant apologised for the offence and said he was carrying the luggage for an ‘other person’ who he could not identify.

29. In determining the applicant’s sentence, Judge Zahra considered a report by Dr Ashkar (forensic psychologist), which noted the applicant ‘has limited cognitive resources that help to explain his poor decision-making when he committed the offence’.[9] Judge Zahra found there was no evidence to ‘suggest [the applicant] had the ability to arrange distribution of the drug in Australia’[10] and he concluded:

    The quantity of the drug imported was considerable. The amount of pure heroin, 1.396 kilograms, was substantially greater than the marketable quantity of 2 grams and just below the commercial threshold of 1.5 kilograms.

    Whilst there is no direct evidence that the offender intended to profit from the importation, an inference can be drawn that the offending was motivated by financial gain. The quantity of drug imported was substantial and substantial financial profit would ordinarily be expected when ultimately supplied to users. There is no evidence that would suggest any other rational inference.

    The potential harm to the community if the drugs had been disseminated is considerable. The sentence to be imposed calls for a strong element of deterrence.[11]

    [9] Exhibit G, p AGS 26.

    [10] Exhibit G, p AGS 26.

    [11] Exhibit G, p AGS 27.

30. The Tribunal has not been provided with Dr Ashkar’s report or any report assessing the applicant’s cognitive or psychological condition. In the absence of any other evidence, the Tribunal has regard to Judge Zahra’s opinion that the applicant ‘has no history of serious mental illness’.[12]

    [12] Exhibit G, p AGS 28.

31. Considering the relevant factors set out in clause 13.1.1 of the Direction, the Tribunal finds that:

    ·The applicant’s criminal offending has involved a single serious offence and does not reflect a pattern of repeat offending. He has not committed any violent offences or sexual crimes.

    ·There is no evidence before the Tribunal that the applicant has committed crimes against vulnerable members of the community; that is, people who are minors, elderly or disabled. However, the applicant potentially would have caused substantial harm to the general community through the importation of heroin. His offending behaviour also expended the resources of law enforcement agencies.

    ·There is no information before the Tribunal that the applicant has committed any offences since his visa cancellation or has ever provided false or misleading information to the Department.

32. Although the applicant committed a single offence, the Tribunal is satisfied that the nature and seriousness of the offence – the attempted importation of heroin with a street value of $1.4 million to $1.45 million – weighs heavily against him.

33. The Tribunal must also consider the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

34. The sentencing remarks of Judge Zahra on 20 December 2013 opined:

    … The offender’s incarceration will continue to be a significant burden on him and will act as a substantial personal deterrent. The offender is now almost sixty six. He will be sixty nine when he will be eligible to be released to parole. In my view he is unlikely to re-offend and has good prospects of rehabilitation.[13]

    [13] Exhibit G, p AGS 29.

35. At the Tribunal hearing, the applicant was unable to provide an explanation for his offence. He told the Tribunal that he was very remorseful and he would never offend again. The applicant’s daughter also said her father recognised his mistake and would not reoffend.

36. There is no further information or report before the Tribunal about the likelihood of the applicant reoffending. Given the applicant has committed a single offence and in view of his current age of 69 years, the Tribunal concurs with Judge Zahra’s opinion that he is unlikely to reoffend. However, the Tribunal also notes that the applicant has not been released into the community since his imprisonment and so his rehabilitation is untested.

37. On balance, the Tribunal finds that the protection of the Australian community weighs against revoking the cancellation decision.

    The best interests of minor children in Australia affected by the decision

38. Clause 13.2(4) of the Direction sets out the factors that the Tribunal must consider in relation to whether revoking the cancellation decision is, or is not, in the best interests of a child affected by the decision. Relevant to this matter are the nature and duration of the relationship, the extent to which the applicant is likely to play a positive parental role, the likely effect any separation would have on the child, and whether there are other persons who already fulfil a parental role.

39. The applicant has seven children and 18 grandchildren who reside in Australia. His children were born between 1968 and 1982, and so are not under the age of 18 years.[14]

    [14] Exhibit G, p AGS 65.

40. The Tribunal has been provided with very limited information about the applicant’s 18 grandchildren but accepts that most of his grandchildren are likely under 18 years old.

41. Four of the applicant’s children and the applicant’s ex-wife provided written statements to the Tribunal.[15] These statements set out some of the names and ages of the applicant’s children and grandchildren, and note their concern for the applicant due to his age and health, and because he has not seen his children and grandchildren for a long time. One of the applicant’s daughters also attended the hearing and provided similar evidence about her desire for her father to spend time with his grandchildren.

    [15] Exhibit A1.

42. The Tribunal also has regard to the offender visit list and phone list for the duration of the applicant’s time in prison. The offender visit list shows one daughter visited the applicant once since he was incarcerated in December 2012.[16] Both the applicant and his daughter told the Tribunal that this is because the applicant’s children are busy working and looking after their children in Adelaide, and the applicant has been in prison and immigration detention in Sydney. The Corrective Services New South Wales phone contact list shows the applicant had regular phone calls with family members while he was in prison from 10 December 2012 to 31 January 2016.[17]

    [16] Exhibit G, p AGS 63.

    [17] Exhibit G, pp AGS 39 – AGS 62.

43. At the Tribunal hearing, the applicant’s daughter acknowledged that only one grandchild had visited her father since December 2012 and he has not met his grandchildren who are under the age of five years. However, she said her father had stayed with her family prior to 2012 and if he was released from immigration detention, he would reside with her family and help to look after her children.

44. Having regard to the Direction, the Tribunal finds the best interests of minor children support revoking the cancellation decision but places very limited weight on this consideration because the applicant has not seen his grandchildren for almost five years and they have other people in their life who fulfil a parental role on a daily basis.

    The expectations of the Australian community

45. The Direction states that the Australian community expects non-citizens to obey the law. It also notes that non-revocation may be appropriate because the nature of the character concerns or offences are such that the community would expect that the person should not hold a visa (clause 13.3(1)).

46. Having regard to clause 6.3(5) of the Direction, which states in part that ‘…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’, the Tribunal observes the applicant has lived in Australia for 26 years. The Australian community would anticipate a nuanced approach to considering the extent to which the applicant is a member of the Australian community even though he is not a citizen. It would seek to consider any positive contributions the applicant has made to society, such as employment, community activities and/or family relationships; and weigh this against his adverse and antisocial behaviour.

1. The evidence before the Tribunal shows the applicant arrived in Australia in 1991 when he was 43 years old. He worked in Australia from 1992 to 2003, and then received the disability support pension due to impairment following an assault. His children’s statements indicate they are employed, married and raising their families in Adelaide.[18]

   [18] Exhibit A1.

2. There is limited information before the Tribunal about the applicant making a positive contribution to Australia apart from brief statements about his employment and references from four of his children and his ex-wife.

3. Clause 6.3(2) of the Direction states the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes. The Tribunal considers the Australian community would have little tolerance for the applicant’s extremely serious crime of importing heroin.

4. On balance, the Tribunal is satisfied the third primary consideration counts against revoking the mandatory cancellation under section 501CA of the Act.

   Other considerations

5. While the primary considerations carry particular weight, the Direction acknowledges at clause 14 that other considerations must be taken into account where relevant.

6. The Tribunal notes that legal representatives for the parties discussed at the hearing whether international non-refoulement obligations may be relevant because the applicant first arrived in Australia in 1991 on a refugee visa. In view of the evidence that the applicant spent a significant period of time in Vietnam from 2005 to 2012, the Tribunal is satisfied the applicant no longer has the status of a refugee – his cancelled visa is a resident return visa – and there are no international non-refoulement obligations in this matter.

7. There is no evidence before the Tribunal regarding ‘other considerations’ of impact on Australian business interests, or impact on victims.

8. The Tribunal now considers the strength, nature and duration of the applicant’s ties to Australia and the extent of impediments if he is removed to Vietnam.

9. The applicant first arrived in Australia in 1991 and did not return to Vietnam until 2005. The applicant then spent approximately 44 per cent of the period between 2005 and 2012 in Vietnam. His mother, many of his siblings and their children still reside in Vietnam.

10. Conversely, all of the applicant’s children and his grandchildren reside in Australia. The evidence of the applicant and his daughter to the Tribunal indicated that his children and grandchildren have established their lives, their employment and their schooling in Australia. The applicant’s daughter acknowledged she and some of her siblings had visited Vietnam a couple of times for short holidays and to visit family members, but did not envisage living in or visiting Vietnam regularly. The applicant noted in his reasons for revocation:

    All my family and support are in Australia except my mother and younger sister are living together in Vietnam…

    I am already very old I want to spend the rest of my life with my children and children’s children in Australia.[19]

    [19] Exhibit G, p AGS 37.

11. The Tribunal finds that the consideration of the applicant’s ties to Australia weigh in his favour.

12. The impediments to removing the applicant from Australia rely on his financial situation, concerns about his health, and his detachment from his children and grandchildren.

13. The applicant set out his concerns if he is returned to Vietnam as ‘how am I going to survive/make a living over there’.[20] The Tribunal accepts that the applicant is unlikely to find employment either in Australia or in Vietnam given he is 69 years old. The applicant’s daughter said that while her father could live with her family, she and her siblings would not be able to financially support her father in Vietnam, apart from giving him ‘a couple of hundred dollars’. She also said her father could not stay with his siblings because they had their own families. The applicant told the Tribunal that if he is removed to Vietnam, he would stay at a temple in the mountains and assist with keeping the temple tidy.

    [20] Exhibit G, p AGS 70.

14. The Tribunal has no recent medical records from the applicant. In a personal details form, the applicant stated he has ‘heart problems, angina, hypertension, MI, has stent, arthritis’ and sets out his medication.[21] Medical reports from 2011 showed the applicant was diagnosed with depression, anxiety and post-traumatic stress disorder.[22] He also suffered a heart attack and was hospitalised in 2013.[23] The applicant told the Tribunal he continues to take medication in relation to his heart condition. However, the applicant has provided no contemporary medical evidence that shows he suffers from medical conditions that could not be treated in Vietnam.

    [21] Exhibit G, p AGS 69.

    [22] Exhibit A2.

    [23] Exhibit G, p AGS 29.

15. While the applicant’s preference is to stay in Australia with his children and grandchildren, the Tribunal notes that he would be able to maintain regular telephone contact with his family members from Vietnam, and his children and grandchildren could visit him in Vietnam. The Tribunal also notes that the applicant’s mother, siblings and their children and grandchildren still reside in Vietnam. The applicant speaks fluent Vietnamese and had spent a significant period of time living in Vietnam in the seven years prior to his imprisonment.

16. The Tribunal is also satisfied that the cancellation of the applicant’s visa and his return to Vietnam, while not his preference, would not place him in an alien or unsafe environment.

17. On balance, the Tribunal finds there are impediments, primarily relating to his financial situation and removal from the support of his children, which would affect the applicant’s capacity to recommence a life in Vietnam.

    CONCLUSION

18. The first and third primary considerations weigh against the applicant. The Tribunal places very limited weight on the second primary consideration.

19. In regard to the other considerations, the applicant’s ties to Australia and the impediments weigh in his favour. However, in view of the significant periods of time the applicant spent in Vietnam prior to his imprisonment in 2012 and his continuing relationship with family and places in Vietnam, the weight placed on these other considerations is low and does not outweigh the primary considerations.

20. In these circumstances, it is not appropriate for the Tribunal to revoke the mandatory cancellation of visa decision.

    DECISION

21. The Tribunal affirms the decision under review.

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member.

...........................[sgd].........................................

Associate

Dated: 21 August 2017 

Date(s) of hearing:	10 August 2017
Solicitors for the Applicant:	Mr N Nandan, My Visa Immigration Law Advisory
Solicitors for the Respondent:	Ms H Dejean, Australian Government Solicitor