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

Dinh and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 282 (8 February 2023)
Division:GENERAL DIVISION
File Number(s): 2022/9610
Re:Hoang Son Dinh
APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT

Decision
Tribunal:Mr S Evans, Member
Date of decision: 8 February 2023
Date of written reasons: 1 March 2023
Place:Sydney

The decision of a delegate of the Minister dated 10 November 2022 to refuse to grant the Applicant a Partner (Temporary) (Class UK) visa is set aside and remitted to the Respondent for reconsideration with the direction that the visa not be refused on character grounds under section 501 of the Migration Act 1958 (Cth).
..................[Sgd]......................................................
Mr S Evans, Member
Catchwords
MIGRATION – visa refused under subsection 501(1) of the Migration Act 1958 (Cth) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – issue: is there a reason why the visa should not be refused on character grounds - Direction no. 90 considered – reviewable decision set aside and remitted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
SCJD and Minister for Home Affairs [2018] AATA 4020
Suleiman and Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
1 March 2023
Mr S Evans, Member

Hoang Son Dinh (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, and Multicultural Affairs (the Respondent) who decided to exercise the discretion under section 501(1) of the Migration Act 1958 (Cth) (the Act) to refuse to grant a Partner (Temporary) (Class UK) visa (the visa).
For the reasons that follow, on 8 February 2023 the decision of the delegate was set aside and remitted to the Respondent for reconsideration with the direction that the visa not be refused on character grounds under section 501 of the Act
Background
The Applicant first arrived in Australia on 7 December 2014 as the holder of a TU (subclass 573) student visa.[1] On 12 April 2018 he applied for a UK Partner (Temporary) and BS Partner (Residence) visa on the basis of his relationship with Christine Chan (Ms Chan), who lodged a sponsorship in support of the application.[2] He was granted a Bridging WA (subclass 010) visa 12 April 2018.[3]
[1] G2/83
[2] G2/73-82
[3] G2/83; G5/261
On 15 March 2019, a delegate of the Minister informed the Applicant that he did not meet the criteria grant of a partner visa.[4] The delegate was not satisfied that the nature of the Applicant’s commitment to his wife was sufficient to demonstrate that he was the spouse or de facto partner of the sponsor.[5]
[4] G2/86
[5] G2/86
On 5 November 2019 the Applicant was arrested and held in custody.[6] On 18 August 2020 he appeared in the District Court of New South Wales where he was convicted of Cultivate prohibited plant - commercial quantity – cannabis and sentenced to one year and nine months imprisonment with a non-parole period of one year and one month which expired on 4 December 2020.[7]
[6] G2/30
[7] G2/25
The Applicant sought review of the 15 March 2019 decision at the Migration & Refugee Division of the Tribunal (MRD).[8] By way of decision dated 1 March 2021, the MRD remitted the matter to the Respondent with the direction that the Applicant met the criteria for grant of a partner visa.[9]
[8] G7/270-271
[9] G2/115
Visa refusal
On 30 May 2022 the Applicant was sent a Notice of Intention to Consider Refusal of the visa on character grounds under section 501 of the Act.[10] The Applicant did not respond to the notice and on 10 November 2022[11] a delegate refused to grant a partner visa as he did not pass the character test.[12] The Applicant was notified of the delegate’s decision on 16 November 2022.[13]
[10] G2/117
[11] G2/8
[12] G2/15
[13] G2/8
On 24 November 2022 the Applicant applied to the Tribunal for review of the delegate’s decision to refuse his visa.[14] In his application he wrote that he could not go back to Vietnam as he needed to stay with his family in Australia.[15]
[14] G1/1
[15] G1/5
Issues to be determined
The issue to be determined by the Tribunal are:
(i)whether the Applicant passes the character test in s501(6)(a) of the Act; and if not
(ii)whether the discretion under subsection 501(1) of the Act to refuse to grant the visa should be exercised.
As the Applicant has been sentenced to a term of imprisonment of 1 year and 9 months on 18 August 2020 for Cultivate Prohibited Plant-Commercial Quantity-Cannabis (taking into account the charge of Use/Consume/Waste Etc Electricity Without Authority-T1), I am satisfied he has a substantial criminal record for the purposes of paragraph 501(7)(c) of the Act and accordingly does not pass the character test under paragraph 501(6)(a) of the Act.
As such, the question for the Tribunal is whether the discretion under subsection 501(1) of the Act to refuse to grant the visa should be exercised.
Relevant law and Ministerial direction no. 90
Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the Minister is not satisfied that the person passes the character test. The character test is set out in section 501(6)(a) of the Act and provides that a person does not pass the character test if one of a number of grounds is met, including if they have a ‘substantial criminal record’.
Substantial criminal record is defined in subsection 501(7) of the Act and relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; …
Section 500(1) provides that a person who has been refused grant of a visa under section 501 may apply to the Tribunal. Section 499(1) of the Act provides that the Minister may give written directions to a person or body performing functions exercising discretion under the Act, including the Tribunal.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 90).
Paragraph 5.2 of Direction 90 provides overarching principles which I have considered when reviewing the Applicant’s application. It 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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to refuse an applicant’s application for a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be considered ‘secondary’ or of inherently less importance than primary considerations, and in certain circumstances one or more other considerations may outweigh primary considerations.[16]
[16] Suleiman and Minister for Immigration and Border Protection [2018] FCA 594, [23] per Colvin J
The primary considerations in the Direction are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) family violence committed by the non-citizen;
(3) best interests of minor children in Australia affected by the decision; and
(4) expectations of the Australian Community.
The other considerations set out in Direction 90 which must be taken into account where relevant include but are not limited to:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community.
Evidence
The matter was originally listed to be heard on 30 and 31 January 2023. The Applicant appeared in person and was self-represented.
In giving his evidence the Applicant was taken by the Respondent’s representative to a statutory declaration dated 20 October 2019, purportedly submitted by the Applicant.[17] The Applicant stated that he was not familiar with the statutory declaration and that he understood it had been submitted on his behalf by a migration agent who had been engaged to assist in his application for a partner visa. The Applicant denied that the signature on the document was his and upon reading the document he took issue with its contents.
[17] G8/276
Specifically, the statutory declaration includes reference to the Applicant’s son and a desire to send him to ‘a better educational institutions [sic] to help him overcome his learning difficulties’.[18] The Applicant confirmed that he does not have any children.
[18] G8/276
The statutory declaration also states that the Applicant’s wife had been diagnosed with major depressive disorder and was suffering from ‘the onset of frequent migraines and a more recent diagnosis of chronic kidney failure’.[19] The Applicant confirmed his wife suffers from depression but has not been diagnosed with chronic kidney failure.
[19] G8/275
With agreement of the Respondent’s representative, the matter was adjourned to enable the Applicant to re-consider the documentary evidence. He was also provided an opportunity to make submissions without being limited by the operation of subsections 500(6H) and (6J) of the Act, which require that any oral or documentary information submitted in support of an applicant’s case be provided at least two business days before the hearing.
The Applicant subsequently provided a statement from his wife and her mother, Thy Chan. Both gave oral evidence at the hearing.
Evidence of the Applicant
The Applicant was 17 years old when he arrived in Australia on a TU (Subclass 573) visa to learn English and study business.[20] He did not complete his studies and before he began paid employment when he was 18 years old. He was employed as a kitchen-hand and then worked at a bakery.
[20] Respondent’s Statement of Facts, Issues, and Contentions (RSFIC), [1]
In a written statement dated 6 April 2018, the Applicant states he met Christine Chan at an event to mark his eighteenth birthday in October 2016. On 14 January 2018 the Applicant and Ms Chan married.[21]
[21] G2/126-128
When questioned about his offending, the Applicant gave evidence of having become involved in the criminal enterprise after telling a friend he needed to earn more money. He wanted to increase his income to help support his family in Vietnam as his father had become unwell. His friend offered to refer him work where he could earn more money.
The Applicant commenced what he described as a ‘cleaning job’. He was required to clean the outside of a residential premise, dispose of rubbish and mow the lawn for which he would be paid $250. In the first month he went to the premise on two or three occasions and it was his evidence he made 5 visits to the premise over two months before he was arrested. He gave evidence that during his initial visits he did not enter the premises but was later asked to clean the interior of the house, which is when he observed the cannabis crops.
The Applicant accepts his offending but explained that he was young at the time and claims to have been ‘mentally confused’ when he was arrested. He believed that if he pled guilty to the offence he would spend time in prison before being released back into the community. He did not know his visa would be refused.
Asked about his family in Australia, the Applicant gave evidence that he was unsure how his wife would react should he be required to return to Vietnam. He gave evidence that he and Ms Chan maintained their relationship whilst he was in prison and they speak daily. They have discussed the possibility of the Applicant returning to Vietnam and she has told him she would go with him. The Applicant told the Tribunal that while Ms Chan has extended family in Vietnam and had regularly visited with her mother, she is not close to her relatives in Vietnam.
In a statutory declaration dated 27 January 2021 the Applicant writes of his distress at being unable to provide emotional and financial support to his family.[22] He writes that Ms Chan has been diagnosed with major depression disorder and he feels his offending has contributed to her poor mental health.[23] He claims that the distress that his offending had caused his family – particularly Ms Chan - had given him cause to think very carefully about his actions.
[22] G9/291
[23] G9/291
On 18 July 2022 the Applicant signed a Border Force request for removal from Australia.[24] He explained that at that time he was ‘giving up’ hope of being able to remain in Australia, but changed his mind shortly afterwards because he did not want ‘to lose’ his wife.
[24] G2/137-138
Asked if he would offend again should he find himself under financial pressure, the Applicant told the Tribunal that he would not. Having spent 3 years in prison or immigration detention had been difficult and he now appreciates that being together with his family is more important than money.
The MRD decision of March 2021 states that the Applicant was motivated to offend so that he could pay for his mother’s medical treatment:
The applicant has indicated that as a result of his impecuniosity and the financial impact of his mother’s expensive cancer treatment in Vietnam he became involved in criminal activities to secure funding for her cure. He informs that he regrets that he ever became involved in this criminal caper because it led inexorably to his subsequent criminal charge and imprisonment for nearly two years. He now finds himself in detention. This issue then had a deleterious effect on the mental health of his wife. Fortuitously, the parties remain united despite these events.[25]
[25] G2/114-115
When this was put to the Applicant, he confirmed without equivocation that it was not correct. He said that his mother was ill at the time, but her illness was not a contributing factor to his offending. Included in the documentary evidence is a medical invoice for Mrs Thi Loan Le dated 17 May 2019 which the Applicant explained was requested by the migration agent who represented him at that time.[26]
[26] G10/317
The Applicant has a friend from school in Vietnam who he remains in contact with and last spoke to in early 2022. He claims to have three close friends in Australia.
Should he be released into the community the Applicant plans to seek employment as a delivery driver or return to work in a bakery. He has a friend who works for a courier company and he would ask for a position from him. The bakery where he was previously employed has indicated he would be able to work there again if he chose to.
If he is able to stay in Australia, the Applicant plans to live with his wife in an area of Sydney far away from individuals connected to his offending.
Evidence of Christine Chan, the Applicant’s wife
In a statement submitted on 31 January 2023 Ms Chan writes it has been difficult not having the Applicant with her. She struggles with her mental health and the Applicant’s absence has contributed to her going to ‘dark places’ in her mind. She writes that she would be devastated should the Applicant not be able to stay in Australia and is ‘terrified’ at the thought of him not being able to stay. She is ‘scared of what [she] might do to [herself]’.
Ms Chan also gave oral evidence at the hearing. She stated that at the time of the Applicant’s offending they were struggling financially. When she found out about the Applicant’s offending she was angry, as she felt he had lied to her. She believes she may have been able to prevent the Applicant from offending if he had been honest with her at the time.
Whilst Ms Chan was upset and felt that the Applicant had been deceitful, she remains committed to their relationship and visited the Applicant on approximately 12 occasions whilst he was in prison. She visited the Applicant less after his transfer to immigration detention, primarily on account of COVID-19 restrictions.
Ms Chan’s mother owns and runs a beauty salon where Ms Chan works. She also works at a hotel and gave evidence of regularly sending money to the Applicant’s family in Vietnam. Owing to recent ill health, Ms Chan’s mother has passed down the salon to her. Despite her additional responsibilities and financial challenges, Ms Chan is prepared to accompany the Applicant to Vietnam. However, as she has not previously lived in Vietnam Ms Chan is concerned about her ability to adapt and fears the impact moving to Vietnam may have on her mental health.
Evidence of Thy Chan, the Applicant’s mother-in-law
In a statutory declaration dated 17 February 2021, Thy Chan recounts attempting to call her daughter on 14 January 2021 as it was her wedding anniversary. Thy Chan tried to call her daughter ‘many times’ but she did not answer the phone. She became worried and went to her daughter’s house. When she arrived ‘maternal instinct’ told her something was not right so she entered the house where she found her daughter unconscious on the floor.[27]
[27] G10/310
Consistent with her evidence, a hospital discharge referral dated 15 January 2021 confirms Ms Chan was admitted to hospital three days earlier following an attempted suicide.[28] Upon admission she presented with reduced consciousness following a massive paracetamol and amitriptyline overdose. The referral states that Ms Chan denied having attempted suicide and explained that she ‘just wanted to sleep’.[29]
[28] G10/304
[29] G10/304

In a statement dated 29 November 2022, Thy Chan writes that her daughter had been very depressed without the Applicant and was ‘stressed’ at the prospect of him being unable to remain in Australia. She considers such an outcome would be ‘very difficult for her [daughter] to handle’.
Thy Chan gave evidence of having first met the Applicant in 2017 and claims they are very close. She concedes she did not visit him in prison but said they maintained contact by phone. In a statement dated 29 November 2022, Thy Chan writes she believes the Applicant has changed and learnt from his mistakes.
Soon after her daughter and the Applicant married, Thy Chan became ill and was required to have an operation which took her a year to recover from. She was not immediately made aware of the Applicant’s arrest and imprisonment owing to her own medical issues and was surprised when she found out about his offending.
In her oral evidence she confirmed that on account of her ill health she had transferred ownership of her salon to her daughter. Thy Chan continues to have an active role in the business and plans for the Applicant to help run the business should he remain in Australia. Should the Applicant move to Vietnam with her daughter it would be very difficult for her as her daughter’s English language skills are essential for the running of the business. She also fears that her daughter would not survive in Vietnam as her mental health remains fragile.
Primary consideration 1 – protection of the australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 90 requires decision-makers to have regard to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
The Applicant’s offending consists of the conviction for Cultivate prohibited plant – Commercial Quantity- Cannabis for which he was sentenced by the District Court of New South Wales to a 21-month term of imprisonment on 18 August 2020.
In sentencing the Applicant, Judge Abadee sets out the circumstances of the Applicant’s offending. The Applicant was observed on multiple occasions between 31 October 2019 and 5 November 2019 entering a residential property.[30] When police executed a search warrant and entered the property the Applicant was inside and attempted to flee.[31]
[30] G2/27-28
[31] G2/28
The property contained cannabis plants at various stages of development which were housed in black plastic pots under high intensity discharge lighting. It was estimated that the street value of the plants at maturity was around $418,000.[32]
[32] G2/29
Analysis of the Applicant’s mobile phone revealed the Applicant had paid rent to the landlord of the property via nine bank transfers.[33]
[33] G2/29-30
The Court found that the gravity of the Applicant’s offending fell below the midrange but was ‘not at the lower end of the scale’. Judge Abadee also expressed his reservations about the Applicant’s credibility and reliability and found that he was ‘substantially more than a cleaner.’ [34]
[34] G2/32
It was recorded that the Applicant had provided inconsistent accounts of his offending to his psychologist, his correctional officer and in his letter of remorse to the Court. Judge Abadee found the inconsistencies ‘troubling’ and concluded that the Applicant had not given a ‘full and frank account of what motivated him to engage in the offending’.[35]
[35] G2/35, 38
The Respondent submits that the Applicant’s offending is to be considered serious,[36] and cites the observations in SCJD and Minister for Home Affairs where Senior Member Cameron stated:
There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.[37]
[36] RSFIC, [19]
[37] [2018] AATA 4020, [81] – [82]
As acknowledged in the sentencing remarks, the Applicant’s role in the commercial operation was limited but extended beyond being a cleaner.[38] Whilst the Applicant’s offending is limited to the one offence, the seriousness of the offending is reflected in the sentence imposed upon him, and I find it to be serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
[38] G2/33
Subparagraph 8.1.2(1) of Direction 90 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. Subparagraph 8.1.2(2) provides that in assessing the risk posed by a non-citizen to the Australian community, I should consider, 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 reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
Should the Applicant commit offences of a similar nature in the future, there is the potential to cause significant physical and psychological harm to the Australian community. As the Tribunal stated in SCJD, the cultivation of illegal drugs can cause adverse consequences for individuals, the justice system and potentially contribute to other offences relating to the illegal drug trade.
There is no suggestion of the Applicant having a criminal history prior to commission of the index offence.[39] In sentencing the Applicant Judge Abadee concluded there was a low risk of him reoffending[40]
[39] G2/39
[40] G2/40
I am required to consider the Applicant’s rehabilitation at the time of making this decision. The Applicant claims to have completed a course whilst in prison but there is no documentary evidence of him having done so. He is unable to recall the name of the course but gave evidence of having learnt about the dangers posed by illegal drugs and the course being held across four sessions. In light of the vagueness of the Applicant’s submission regarding formal rehabilitation, and absent any documentary evidence of having completed the course, his claim in this regard is afforded little weight.
Whilst the Court considered the Applicant at low risk of reoffending, it is of some concern he was found not to have provided a full and frank account of his offending and the Court expressed reservations about his credibility. At the Tribunal, the Applicant maintained that his role in the criminal enterprise was largely limited to that of a cleaner - despite the Court finding he was ‘substantially more than a cleaner’.
The documentary evidence strongly suggests that the Applicant has sought to attribute his offending to a need or desire to provide financial support for his family in Vietnam. On separate occasions he appears to have cited the ill health of either his mother or father as the reason he needed to support his family.
I do not accept the need to support his family in Vietnam was a significant factor in his offending. The Applicant conceded not having sent much money to his parents, though his wife claims to have done so. He and his wife faced their own financial pressures and an objective consideration of the facts indicates that the Applicant’s parents are, as he told the Tribunal, relatively well off. There is certainly no indication that their financial situation was so dire that he would be required to turn to criminal activity in order to support them.
Conclusion
The Applicant has committed a single, albeit serious offence, and there is no new evidence before the Tribunal which casts doubt on the Court’s finding that he was a low risk of reoffending. I am satisfied that the salutary effect of his imprisonment and subsequent detention, and the impact his offending has had on his wife’s health, further reduces the likelihood that he will reoffend. Nonetheless, there remains a risk that he will offend again and though he entered a plea of guilty, continuing inconsistencies in his account of his offending provide some cause for concern.
For the reasons outlined above, this primary consideration weighs strongly in favour of refusing the Applicant’s visa and is afforded significant weight.
PRIMARY CONSIDERATION 2 - Family violence
The second primary consideration is whether the conduct engaged in by the Applicant constituted family violence. Family violence is defined in Part 4 of Direction 90 to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
As the Applicant has not committed any family violence this primary consideration is afforded no weight.
primary consideration 3 - BEST INTERESTS of MINOR children
Direction 90 sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known wishes of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
As detailed in paragraph 22 of this decision, the Applicant had previously submitted in a statutory declaration that he was the father to a minor child, but in his oral evidence to the Tribunal he confirmed this was not the case. I am satisfied that the Applicant is not the father of minor children who would be affected by this decision.
However, at 10 years of age the Applicant’s brother-in-law, CJ, is a minor. Ms Chan gave evidence that CJ ‘cherishes’ her husband and they have a close ‘brotherly’ relationship, but concedes that outside of the occasional gift or ‘red pocket’, the Applicant does not financially support CJ. She also confirmed that CJ does not have any special needs or requirements as indicated in the discredited statutory declaration.
The evidence before the Tribunal supports a finding that whilst not performing a parental role for CJ, the Applicant has a strong bond with the child.
Overall, I am satisfied that it is in the best interests of CJ that the Applicant is not refused a visa. For the reasons outlined I afford this consideration moderate weight.
primary consideration 4 - Expectations of the AUstralian community
Paragraph 8.4 of the Direction requires me to consider the expectations of the Australian community. Subparagraph 8.4(1) relevantly states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In FYBR v Minister for Home Affairs[41] (FYBR) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.4 of Direction 90.
[41] [2019] FCAFC 185
The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. Having regard to the provisions of Direction 90 and the Applicant’s criminal offending, the Australian community would expect that the Applicant would be refused a visa given his conviction for cultivating an illegal drug in commercial quantities.
I find that the community’s expectations weight against the Applicant being granted a visa.
Other relevant considerations
Extent of impediments if removed
I am required to consider the extent of any impediments that the Applicant may face if removed from Australia in establishing himself and maintaining basic living standards in Vietnam in the context of what is generally available to other citizens of Vietnam.
The Applicant gave evidence of suffering from back pain as a consequence of his working at a bakery. Having ceased working at the bakery, the Applicant confirmed he no longer suffers from sciatica or lower back pain. He also confirmed that he does not suffer any mental health or physical conditions and is not taking any medications.
As the Applicant resided in Vietnam until he was 17, there is no reason to expect that he would experience language or cultural barriers should he return.
Both the Applicant’s parents and his brother live in Vietnam and he maintains frequent contact with them. The Applicant’s father suffered a stroke in late 2019 and was bedridden for 4 months but now able to move about. Whilst the Applicant claims to have sent his family a small amount of money to assist them financially, he concedes they are in a position to assist him should he return to Vietnam. He described his family as being ‘well off’, but gave evidence that their wealth has declined following his father’s illness. His family currently own and run a coffee shop to cover expenses.
The Applicant suggested he may suffer some disadvantage should he return to Vietnam as he and his family would be ‘looked down upon’ by neighbours if they were to find out he was not able to return to Australia.
The Applicant has extended family in Vietnam including grandparents, aunts, uncles and cousins who he maintains contact with. Whilst most of his older cousins reside overseas, his younger cousins are in Vietnam. When asked about his plans should he be returned to Vietnam, the Applicant states he would operate a small restaurant or food stall in his home city.
Taking into account his previous request to be returned to Vietnam, his extensive family connections and his good health, I find that the Applicant would not be expected to face significant impediments should he return to Vietnam.
Whilst this consideration weighs in favour of the Applicant, for the reasons I have outlined it is afforded little weight.
Links to the Australian community
I am required to consider the strength, nature and duration of the Applicant’s ties to Australia. The Applicant has lived in Australia for 8 years since arriving when he was 17. He has worked in Australia during that time and I note his submission that his previous employer would be prepared to employ him again.
The Applicant’s wife and her family reside in Australia. Ms Chan suffers from mental illness for which she receives treatment and required hospitalisation following a suicide attempt in January 2021. Ms Chan’s suicide attempt occurred on her wedding anniversary and the related hospital discharge report confirms the serious nature of the self-harm. I accept her evidence that the uncertainty surrounding the Applicant’s visa status continues to cause her mental distress and I consider that she would be adversely impacted by a decision to refuse the Applicant’s visa. Her evidence was that she was prepared to travel with the Applicant to Vietnam should he not be granted a visa, but her mother expressed concern that she might not receive the support she requires to manage her condition in Vietnam. Ms Chan also has concerns about maintaining her mental health should she leave Australia.
The Applicant’s mother-in-law gave evidence of having had serious health issues which led her to hand ownership of her small business to her daughter. Whilst she remains involved in the running of the business, she relies on her daughter’s English language skills to manage critical aspects of the business particularly in relation to bookkeeping.
I take into account that the Applicant previously requested he be returned to Vietnam. I also note that whilst Ms Chan and her mother considered that the Applicant would work in their family business, the Applicant gave evidence of planning to work as a courier.
Though there is limited evidence of the Applicant having engaged more broadly in the community, I consider the impact his removal would have on Ms Chan and Thy Chan would be significant as both suffer from ill health. I afford this consideration significant weight in favour of the Applicant.
COnclusion
In weighing up the considerations set out in the direction, I consider that the protection of the Australian community weighs against issuing the Applicant a visa. Whilst his offending is limited, the seriousness of the Applicant’s offending is reflected in the term of imprisonment imposed upon him. Inconsistencies in his explanations as to the drivers of his offending and the precise nature of his involvement in the enterprise weigh against him in the context of this primary consideration. The primary consideration in relation to the expectations of the Australian community also weighs against granting the Applicant a visa.
The Applicant can expect to face some difficulty re-establishing himself and maintaining a basic living standard in Vietnam having been out of the country for 8 years. However, these will be minimal and he can expect assistance from family in Vietnam. As such I afford this consideration little weight in favour of granting the Applicant a visa.
The consideration in relation to links to the Australian community and the strength, nature and duration of the Applicant ties to Australia is afforded significant weight in favour of the Applicant. There is some evidence that the Applicant and Ms Chan experienced difficulties in their relationship immediately prior to his arrest and imprisonment. However, the more recent evidence, notably Ms Chan’s oral evidence to the Tribunal and her health records, indicate that she is committed to the Applicant and their relationship has a significant bearing on her mental health. I am also mindful that the continued presence of the Applicant will be of comfort to Thy Chan who claims a strong relationship with the Applicant and fears for her daughter’s mental health should she relocate with him to Vietnam.
Whilst a finely balanced decision, I am of the view that the Applicant’s ties to the Australian community are such that it is appropriate he is not refused a visa.
Decision

For the reasons given above, the decision of a delegate of the Minister dated 10 November 2022 to refuse to grant the Applicant a Partner (Temporary) (Class UK) visa is set aside and remitted to the Respondent for reconsideration with the direction that the visa not be refused on character grounds under section 501 of the Migration Act 1958 (Cth).

I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons for the decision herein of

...................[Sgd].....................................................
Associate
Dated: 1 March 2023

Date(s) of hearing:

30 January and 3 February 2023

Applicant:

In person

Solicitors for the Respondent:

Ms E Letcher-Boldt, Clayton Utz

[2023] AATA 282

8 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Date(s) of hearing:	30 January and 3 February 2023
Applicant:	In person
Solicitors for the Respondent:	Ms E Letcher-Boldt, Clayton Utz