Dinh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1487
•20 May 2021
Dinh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1487 (20 May 2021)
Division:GENERAL DIVISION
File Number: 2021/1277
Re:Huu Tuyen Dinh
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:20 May 2021
Place:Perth
The decision of the delegate of the Minister dated 24 February 2021 not to revoke the cancellation of the Applicant's Contributory Parent (Migrant) (Class CA) (Subclass 143) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – decision of a delegate of the Minister not to revoke mandatory cancellation of visa – Applicant fails the character test – whether there is ‘another reason’ to revoke the mandatory cancellation – Direction 90 applied – Applicant sentenced to terms of 22 months and six months imprisonment and declared a drug trafficker – evidence as to when Applicant was notified of decision in accordance with s 501G(1) of the Migration Act unclear – whether the Applicant had an authorised recipient for the purposes of s 494D(1) of the Migration Act – role of the Tribunal to scrutinise administrative procedures and make recommendations to promote ‘good government’ – moderate to medium risk of the Applicant engaging in further serious or criminal conduct – limited links to the Australian community – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 494D(1), 499(1), 499(2A), 500(1)(ba), 500(6B), 501, 501(3A), 501(6), 501(6)(a), 501(7)(c), 501CA(3)(b), 501CA(4), 501CA(4)(b), 501CA(4)(b), 501G(1), 501G(1)(c), 501G(1)(d), 501G(1)(e), 501G(1)(f), 501G(2), 501G(3), 501G(4)
Migration Regulations 1994 (Cth) – reg 2.55
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1
CZCV and Minister for Home Affairs [2019] AATA 91
EIA18 v Minister for Home Affairs& Anor [2021] FCCA 613
FYBR v Minister for Home Affairs [2019] FCAFC 185
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Ielati and Secretary, Department of Social Services [2018] AATA 4276
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
NDBR v Minister for Home Affairs [2019] FCA 1631
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5165
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Sullivan v Department of Transport (1978) 1 ALD 383
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Department of Health, National Drug Strategy 2017–2026 (18 September 2017)
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021) – paras 4(1), 5.1. 5.1(3), 5.2, 5.2(3), 5.2(4), 6, 7, 8, 8.1, 8.1.1, 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.3, 8.3(4)(a), 8.3(4)(b), 8.3(4)(d), 8.3(4)(e), 8.4(1), 9, 9(1)(d), 9.1, 9.2, 9.2(1), 9.2(1)(b), 9.2(1)(c), 9.3, 9.3(1), 9.4, 9.4.1, 9.4.1(2)(a), 9.4.2
REASONS FOR DECISION
Deputy President Boyle
20 May 2021
THE APPLICATION
The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 24 February 2021 (the Decision) not to revoke the cancellation of the Applicant's Contributory Parent (Migrant) (Class CA) (Subclass 143) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act). [1]
[1] R2, G3/15.
The Applicant’s visa was cancelled under s 501(3A) of the Act because he did not pass the character test by reason of his substantial criminal record and because he was serving a full-time term of imprisonment for an offence against a law of a State.
JURISDICITON
The Tribunal finds that the Applicant was notified of the Decision in accordance with s 501G(1) of the Act on or after 25 February 2021. The reason that the Tribunal is left to find that notification of the Decision was provided “on or after” 25 February 2021, is that the evidence as to when and how the Applicant was notified of the Decision is not clear. The letter notifying the Applicant of the Decision was dated 25 February 2021. The written notification of the Decision, obviously, could not have occurred any earlier than the date on which the letter notifying of the Decision was sent by the Department of Home Affairs (the Department). That letter was dated 25 February 2021.
The document usually taken as evidencing the date of the service of notification of a decision under s 501CA(4), and which is usually included in the G documents, is a Department standard form document acknowledging/confirming the receipt of the notice of decision and other documents. An incomplete and unsigned copy of that standard form, which the Tribunal assumes was part of or was attached to the letter from the Department advising of the Decision, appears in the G documents at R2, G1/12.
As this Tribunal has previously noted, that standard form, even when completed, is deficient. It provides for a signature of the recipient of the notification of the decision and the insertion of “Date” under the signature. That “Date”, however, could be taken to mean the date that the acknowledgement is signed. The standard form does not provide for the specific identification of the critical date, which is the date that the written notification of decision was served. Anyone relying on this standard form (when completed) is left to assume that the acknowledgment document was signed at the time the notification of decision and the other documents were handed to the prisoner or detainee, or at least was signed on the same day. That, however, may not always be the case. It would obviously be a simple matter to amend that standard form to specify the date on which the notification of the decision was served.
The standard form also provides for the officer who handed the notification of decision and other documents to the prisoner or detainee to confirm that “the documents referred to above were received by the above named [sic] person”. The “documents referred to above” are described in the first paragraph of the form as the notice of the decision not to revoke the cancellation “and a copy of the documents pertaining to the decision to not revoke the cancellation of the visa…”. The prisoner’s or detainee’s acknowledgement is also of the receipt of documents so described. Several issues arise out of these provisions of the standard form. The first is that, as with the acknowledgment of receipt of documents by the prisoner or detainee, there is no provision for the officer confirming service to identify when the documents were received by the prisoner or detainee. Secondly, the acknowledgment of receipt of documents by the prisoner or detainee, and the confirmation by the officer, refer to “a copy of the documents pertaining to the decision”. There is no identification of what those documents were. This could be an issue given the very particular requirements of s 501G(2) of the Act which provides:
If the decision referred to in subsection (1):
(a) was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA; and
(b) is reviewable by the Administrative Appeals Tribunal; and
(c) relates to a person in the migration zone;
the notice under subsection (1) that relates to the decision must be accompanied by 2 copies of every document, or part of a document, that:
(d) is in the delegate's possession or under the delegate's control; and
(e) was relevant to the making of the decision; and
(f) does not contain non-disclosable information.
Two issues arise out of the wording of the standard form when read in the context of the requirements of s 501G(2) of the Act. The first is that the Tribunal is left to assume that reference to “the documents pertaining to the decision” is a reference to the documents as prescribed by subsections (d)–(f) of s 501G(2) of the Act. The second issue is the reference to the prisoner having received “a copy” of such documents. Section 501G(2) requires the service of “2 copies of every document”.
Subsection 501G(4) of the Act provides that a failure to comply with that section in relation to a decision does not affect the validity of the decision. The issue for the Tribunal, however, is that s 500(6B) of the Act provides:
If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.
(Emphasis added.)
If one takes the word “within” to prescribe both a starting point and an end point for the making of an application for review, the starting point under s 500(6B) is the “day on which the person was notified of the decision in accordance with subsection 501G(1)” and the finishing point is nine days thereafter. Section 501G(1) requires the Minister to give the person a written notice which sets out the things required by sub-ss 501G(1)(c)–(f). The obligation to provide documents with that written notice arises separately under s 501G(2). Section 500(6B), in prescribing the commencement of the nine-day period for calculation of the date by which an application to the Tribunal must be made, firstly refers only to notification of the decision and, secondly, refers only to s 501G(1), not to s 501G(2). Accordingly, service of the documents required by s 501G(2) is not a condition to the right to make an application to the Tribunal for review, or the commencement of the nine-day period by which such an application under s 500(6B) must be made.[2]
[2] See Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424 at [10]-[25](at [10]–[25]) for discussion on whether the term “within 9 days” in s 500(6B) defines a starting date before which an application cannot be made as well as an end date for the making of an application, or just an end date after which an application cannot be made.
Paragraph 7 of the Minister’s Statement of Facts, Issues and Contentions dated 7 April 2021 (Minister’s SFIC) says that on 25 February 2021, the delegate notified the Applicant “via email to his authorised recipient of the delegate’s decision not to revoke the visa cancellation decision dated 24 February 2021”. The email that appears at R2, G2/8 indicates that the notice of the Decision was sent to the Applicant’s daughter, Ms Dinh, on 25 February 2021. There are, however, potential problems with the Minister’s contention. The first is that, while the Applicant’s Personal Circumstances Form authorised Ms Dinh to be a “contact … regarding your case”,[3] that form did not authorise Ms Dinh to receive the notice of the Decision for the purposes of s 501G(1) of the Act which requires that “the Minister must give the person a written notice”, or appoint her as the Applicant’s authorised recipient. The printed text of the Personal Circumstances Form contains the following note:
NOTE: If you want to appoint a person to assist you with immigration matters or to receive correspondence on your behalf, you must complete and submit Form 956…
[3] R2, G10/60.
There was a form 956 included in the G documents[4] which appeared to have been signed by the Applicant and Ms Dinh. That form, however, does not specifically appoint the nominated “exempt person” (as described in that document) as an authorised recipient or as someone who can receive a written notice of decision under s 501G(1) or the documents under s 501G(2) of the Act. Question 17 of the Form 956 under the heading “Authorised recipient”, asks:
Have you been authorised to receive written communications on behalf of your client(s) in relation to the matter indicated in Question 15?
[4] R2, G14/121–3.
Question 15 asks:
Are you providing assistance with an application, a cancellation process or specific matter? (tick one only).
The box next to “Cancellation process” was ticked, however, the other details required by Question 15 were not provided. Whether the above entries on those documents are sufficient to effectively appoint Ms Dinh as his agent or authorised recipient for the purposes of receiving the notice of decision under s 501G(1) is questionable. Further, Question 17 is a question addressed to the “exempt person”, it is not an appointment by the “client”. The declaration by the “client” in para 23 of the Form 956 says that the “exempt person” has been appointed to “provide assistance”. It does not, at least specifically, appoint the “exempt person” as an “authorised recipient” under s 494D of the Act.
Section 494D(1) of the Act provides:
Authorised recipient
(1)If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.
(Original emphasis.)
It was noted by Mercuri J in EIA18 v Minister for Home Affairs& Anor[5] (EIA18) (albeit in obiter dicta comments) that whether s 494D of the Act allows for service of a notice of a decision under s 501G(1) to be affected on an authorised recipient is not clear. At [67] of EIA18 Mercuri J said:
… in my view, section 494D arguably does not apply to notifications required to be given under regulation 2.55.
[5] [2021] FCCA 613.
Regulation 2.55 of the Migration Regulations 1995 (Cth) (Regulations) relevantly provides that:
(1) This regulation applies to:
(a) …
(ab) …
(b)the giving of a document under subsection 501G(3) of the Act relating to a decision to:
(i) cancel a visa under section 501, 501A, 501B, 501BA or 501F of the Act; or
(ii) not revoke a decision to cancel a visa under section 501CA of the Act; and
…
Subsection 501G(3) provides:
A notice under subsection (1) must be given in the prescribed manner.
In the end, Mercuri J was not required to make a decision on whether or not s 494D of the Act did apply to notifications required to be given under reg 2.55, which would include a notice under s 501G(1). Fortunately, nor is this Tribunal. However the service of the notice of the Decision was affected, the fact is that the application for review[6] was lodged with the Tribunal on 4 March 2021 which is within the nine-day window that applied by operation of s 500(6B) of the Act.
[6] R2, G1.
The Tribunal is satisfied that the Decision comes within s 500(1)(ba) of the Act which allows applications to be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa. The Tribunal is also satisfied that the application for review was made within the time prescribed by s 500(6B) of the Act. The Tribunal is satisfied that it has jurisdiction to review the Decision.
RECOMMENDATION
While the Tribunal has, in the present case, found that notification of the Decision was provided to the Applicant within the nine-day window for the making of an application under s 500(6B), the exercise that the Tribunal had to undertake to make that finding should not have been necessary. The processes for service of notification of a decision under s 501CA(4) not to revoke the cancellation of a visa, and more importantly, the recording of when and how the service of notification was affected, should be much clearer. In this regard the Tribunal notes that part of its role is to scrutinise administrative procedures and, in appropriate cases, make recommendations on how such procedures can be improved. The Tribunal’s role in promoting “good government” has been identified in a number of cases such as Sullivan v Department of Transport[7] at 386, wherein Smithers J stated:
The Tribunal is established to exercise a function in the sphere of government. The objective is the achievement of justice in the relations between the citizen and the State compatible with standards only definable as those of good government.
In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd,[8] Smithers J stated, at 22, that:
... in enacting the [Administrative Appeals Tribunal] Act, Parliament had in mind to provide for the review by an independent Tribunal of certain administrative decisions by reference to standards of good government...;[9]
and at 23 observed that:
[i]n essence the Tribunal is an instrument of government administration and designed to act where decisions have been made in the course of government administration but which are in the view of the Tribunal not acceptable when tested against the requirements of good government.
(See also Ielati and Secretary, Department of Social Services[10] at [40]–[42].)
[7] (1978) 1 ALD 383.
[8] (1979) 2 ALD 1.
[9] (1979) 2 ALD 1 at 22.
[10] [2018] AATA 4276.
The Tribunal recommends that the Department amend:
(a)the standard form of the acknowledgement/confirmation of receipt of notification of decision to:
(i)specify the date of receipt; and
(ii)specify the documents that are received; and
(b)the forms by which a person is appointed as an authorised recipient under s 494D(1) of the Act to specify that that is what is being done and, given the criticality of the service/receipt of notification of a decision under s 501CA(4), specify that the notification of such a decision will be affected on the authorised recipient.
THE ISSUE
The issue for determination is whether the Tribunal should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the visa made under s 501(3A). That will require determination of:
(a)whether the Applicant passes the character test (as defined by s 501 of the Act); and
(b)if he does not, whether there is a “another reason” why the mandatory cancellation decision should be revoked.
BACKGROUND
The following facts are taken primarily from the Minister’s Statement of Facts, Issues and Contentions dated 7 April 2021 (Minister’s SFIC) and are not contentious.
The Applicant is a 60-year-old citizen of Vietnam. He arrived in Australia in 2015 as the holder of a Contributory Parent (Migrant) (Class CA) (Subclass 143) visa.[11]
[11] R2, G17/131.
On 22 September 2020 the Applicant was convicted in the District Court of Western Australia of cultivating a prohibited plant with the intent to sell or supply, for which he was sentenced to 22 months imprisonment.[12] He was also convicted of fraudulent appropriation of power and was sentenced to six months imprisonment to be served concurrently.[13] As a result of his conviction for cultivation of a prohibited plant with intent to sell or supply the Applicant was also declared a drug trafficker.[14]
[12] R2, G5/29; R2, G6/38.
[13] R2, G5/28; R2, G6/38.
[14] R2, G5/29; R2, G6/40.
On 10 November 2020 the Applicant's visa was cancelled under s 501(3A) of the Act because the delegate was satisfied that the Applicant did not pass the character test because he had a substantial criminal record,[15] as that term is defined in s 501(7)(c), and he was serving a sentence of imprisonment, on a full-time basis, for an offence against a law of a State.[16]
[15] Migration Act 1958 (Cth) s 501(6)(a).
[16] R2, G9.
Pursuant to s 501CA(3)(b) of the Act the Applicant was invited to make representations about why the decision to cancel his visa should be revoked. On 17 November 2020 the Department received a request for revocation with representations from the Applicant through Ms Dinh.[17]
[17] R2, G10.
On 24 February 2021 the delegate of the Minister made the Decision under s 501CA(4)(b) of the Act to not revoke the cancellation of the visa under s 501(3A). The Applicant and/or Ms Dinh, were notified of the Decision as set out above and, on 4 March 2021, the Applicant lodged the application for review of the Decision.
THE HEARING AND THE EVIDENCE
The application was heard on 11 May 2021. The Applicant was assisted at the hearing by Ms Dinh. The Minister was represented by Ms C Saunders of MinterEllison. The Applicant and Ms Dinh gave evidence at the hearing, the Applicant through an interpreter.
The following documents were admitted into evidence:
(a)Document headed “statutory declaration” of Ms Dinh declared 19 April 2021 (Exhibit A1);
(b)Minister’s SFIC dated 7 April 2021 (Exhibit R1);
(c)G documents provided by the Respondent on 12 March 2021 (Exhibit R2); and
(d)Supplementary G documents provided by the Respondent on 7 April 2021 (Exhibit R3).
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)...; 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.
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) …
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
…
Section 501CA of the Act provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(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.
(Original emphasis.)
Ministerial Direction 90
Section 499(1) of the Act provides that:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Section 499(2A) of the Act provides that:
[a] person or body must comply with a direction under subsection (1).
On 8 March 2021 the Minister, being the relevant Minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90). The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).
Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:
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 their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA. These principles are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) 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 measureable 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 measureable risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are applicable) in order to determine whether the mandatory cancellation of the visa should be revoked.
Paragraph 8 of Direction 90 sets out the primary considerations to be taken into account in making a decision under s 501CA(4) of the Act. They are:
(1) protection of the Australian community;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
Paragraph 9 of Direction 90 sets out “other considerations” that the decision-maker must take into account and relevantly provides that:
(1) In making a decision under section ... 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a) international non-refoulement obligations;
(b) extent of impediments if removed;
(c) impact on victims;
(d) links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
Guidance in relation to taking the relevant considerations into account can be found in para 7 of Direction 90 which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[18] The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) (see [32] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. That is clearly so in the Applicant’s case.
[18] [2009] AATA 47; (2009) 106 ALD 666.
The Applicant does not pass the character test. The Applicant, therefore, cannot rely on s 501CA(4)(b)(i) for the mandatory cancellation of his visa to be revoked. The issue is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the original decision under s 501(3A) should be revoked.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED? (S 501CA(4)(B)(II))
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 90 provides that when decision-makers are considering the protection of the Australian community, they:
(1) … should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
(a) The nature and seriousness of the non-citizen’s conduct to date; and
(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 90 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Applicant has two convictions, being those for cultivating a prohibited plant with the intent to sell or supply, for which he was sentenced to 22 months imprisonment, and for fraudulent appropriation of power, for which he was sentenced to a term of imprisonment of six months.
The circumstances of the offences are set out in the sentencing remarks of Wallace DCJ. In sentencing, her Honour also made observations and findings about the seriousness of the Applicant’s offending:
The maximum statutory penalty in respect of count 1 [fraudulent appropriation of power] is a term of imprisonment of three years and the maximum statutory term for count 2 [cultivating a prohibited plant with the intent to sell or supply] is a period of 10 years’ imprisonment.
…
In my view, it was clearly a sophisticated large-scale operation, given that it involved a hydroponic set-up and electricity bypass and effectively, the conversion of almost an entire residential home for the purpose of cultivation of cannabis.
In addition, the quantity of plants involved also reflects on the seriousness of the offending. 116 cannabis plants is a large quantity, which certainly if harvested and distributed into the community would cause significant harm.
The seriousness of your offending is also aggravated by the fact that you offended for commercial reasons. That is, you offended with the knowledge that you were aiding the cultivation of a prohibited drug, namely cannabis, but you did it nevertheless purely for profit, you say to support your gambling and drinking habits. Commerciality arises, of course, because you were paid in cash for your services.
Whilst I accept that you are not a principal in the cultivation and nor did you tend to the plants and nor did your role extend beyond aiding by enabling the cultivation to take place, in my view your role nevertheless was an essential one.
Your role in installing the electrical bypass and being involved in the set-up of the sophisticated hydroponic equipment was a crucial role in aiding and enabling the cultivation of the cannabis to be possible.
In my view, you were well aware that installing the electrical bypass was intended for the purpose of ensuring that the illegal activities were not detected. Lastly, the seriousness of your offending is also reflected by the fact that it was not an aberration and in my view, it did have an element of persistence to it.
…
You candidly self-reported that in Vietnam you were a heavy gambler and consumed alcohol regularly. You assert that those practices are common in your culture and you continued to gamble and drink alcohol regularly with Vietnamese friends when you migrated to Australia.
You believe that this association with your Vietnamese friends led to the current offending by you. To your credit, since your arrest you report to the court that you’ve broken ties with your previous negative peers and you’ve quite gambling, smoking and consuming alcohol.
…
Your counsel has submitted to the court that you are genuinely remorseful and unlikely to similarly reoffend. This is consistent with your pleas of guilty and also the steps you’ve taken towards rehabilitation, and therefore I accept that submission.
…
The quantity is significant, being a trafficable quantity and in fact, is over six times above the trafficable amount of 20 plants. You played a crucial role in the operation, for commercial gain.
And as I’ve stated, in my view, you clearly knew what you were doing was illegal and you intentionally participated for profit.
The parties’ submissions
The Minster’s SFIC contends that:
(a)The nature of the harm to the Australian community should the Applicant commit similar offending is incredibly serious. Australia's National Drug Strategy 2017–2026 notes that the Australian community faces both direct and indirect harm from drugs, including mental health trauma, violence or other crimes, engagement with the criminal justice system more broadly, and healthcare and law enforcement costs.[19]
(b)Specifically in respect of cannabis, it is reported that its use can result in various health impacts, including mental illness, respiratory illness, and cognitive defects.[20] Accordingly, the Minister contends that should the Applicant engage in similar offending in the future which would contribute to the accessibility of illicit substances in the wider community, the nature of the harm the Australia community would face is very serious.
[19] R3, S8/55–6.
[20] R3, S8/84.
The Applicant made no specific submissions on the issue of the nature and seriousness of his offending (see [51] below). The Tribunal made directions on 12 March 2021 which included a direction that the Applicant file and serve a Statement of Facts, Issues and Contentions by 21 April 2021. Ms Dinh’s statutory declaration[21] was the only document filed by the Applicant after those directions. Ms Dinh’s statutory declaration contained submissions as well as evidence. Insofar as Ms Dinh’s statutory declaration made submissions, the Tribunal treated those submissions as, in effect, being the Applicant’s Statement of Facts, Issues and Contentions.
[21] A1.
Ms Dinh’s statutory declaration contains the following comments which could be considered relevant to the nature and seriousness of the Applicant’s conduct:
2.In Vietnam my father was a heavy gambler and regularly used of alcohol, as this common in his culture and socialization at the time of in Vietnam , and my father continued with his friend in Australia with the Vietnamese friends, which unfortunately led my father to this offending.
3.My father was hanging out with the wrong group of friends which he couldn't resist getting dragged into the bad habits along with his friends in Perth. In order to support his addiction and his friends was persuasive him of lending him money and with the interest rate to pay them back. My father think that he soon can repay his friends back the money once his win at crown again. However, he continued to be on dept with a grated substantial amount of dept need repay.
4.My father eventually was been directed to negative people of the community and with the help of those people he was give promise of making money rather asking for help from his own children in Australia because my father was a prior man of losing his face to his children and would not ask for our help.
5.…
10.… He mentions to me that act of decided of offending was the time he was associate with a wrong group of people he should not have and his was not himself stress and depress of not knowing what to do with the dept repay. He decided without think of the consequences later and his very a shame and remorse of his offend.
11.My father mention to his lawyer that "so he sorts of stumble on it through a cultural means. He doesn't deny his involvement and it was brazen, indeed …
12.…
14.On 22 September 2020, The Sate submit that "My father involvement though factually different, is comparable with that [omitted] in so far it was integral to operation, but that like [omitted] was his co-accused, his was subordinate in the overall enterprise.
(Without alteration.)
Consideration
In assessing the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 90, the Tribunal finds that:
(a)(paragraph 8.1.1(1)(a)) – the offences of which the Applicant has been convicted were not of a violent or sexual nature.
(b)(paragraph 8.1.1(1)(b)) – the Applicant’s conduct was not of the type described in this consideration.
(c)(paragraph 8.1.1(1)(c)) – it was noted by Wallace DCJ in imposing the 22 month and the six month terms of imprisonment, that the offences, in particular the cultivation of a prohibited plant with intent to sell or supply, are serious offences (see [48] above). While the sentence of imprisonment for 22 months is not at the upper end of the scale (the maximum term is ten years),[22] the sentence is still significant.
(d)(paragraph 8.1.1(1)(d)) – the Applicant’s convictions arose out of the same criminal endeavour. Accordingly, his offending cannot be considered to be frequent and there is no trend of increasing seriousness.
(e)(paragraph 8.1.1(1)(e)) – for the same reasons stated in [52(d)], there is no cumulative effect of the Applicant’s offending.
(f)(paragraph 8.1.1(1)(f)) – there was no evidence that the Applicant had provided false or misleading information to the Department.
(g)(paragraph 8.1.1(1)(g)) – the Applicant had not received any warning.
[22] R2, G6/32.
The Tribunal is satisfied that the nature of the Applicant’s offending was serious. That was made clear by the sentencing judge’s comments and the sentences imposed.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 90 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or serious conduct; and
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Tribunal in CZCV and Minister for Home Affairs[23] (CZCV) summarised the task for the Tribunal as follows at [56]:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[23] [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection,[24] Moshinsky J stated, at [68]:
... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.
[24] [2016] FCA 1181.
While the Tribunal and the Court in the above cases (and in the cases referred to therein) were considering visa cancellation in the context of predecessors to Direction 90, given the similarity in the wording of the several Ministerial Directions, the same considerations and principles apply to the present case. The Tribunal follows the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The nature of the harm to individuals and to the community if the Applicant were to engage in the criminal behaviour which he has in the past, is self-evident and serious. Some of the possible consequences to the community, and individuals within the community, were identified by Wallace DCJ in her sentencing comments as follows:
It’s the experience of the courts that illicit drugs cause or materially contribute to a significant proportion of the criminal offences committed in this State, either as a result of users acting under their influence or because of the need to finance or secure a supply of drugs.
There are often strong financial incentives to deal in prohibited drugs. Further, significant public resources are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs.
…
In addition, the Court of Appeal has since 2001, repeatedly stated that it takes a more serious view of the threat the cannabis trade poses to society and the increased prevalence of it.
Sadly, the risk correlation between the use of cannabis and mental illness and progression to harder drugs is a familiar theme in sentencing material in more recent times.[25]
[25] R2, G6/35–6.
In his submissions, the Minister referred to Australia's National Drug Strategy 2017–2026 and the findings set out therein as to the harm caused to the community and to individuals by drug use (see [49(a)] above). As Wallace DCJ noted, the Applicant played “a crucial role in aiding and enabling the cultivation of the cannabis to be possible” (see [48] above).
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (8.1.2(2)(b))
The parties’ submissions
The Minister contends that there remains an ongoing risk that the Applicant will reoffend noting that:
(a)The Applicant's insight to his offending should be considered to be limited. His outline of sentencing submissions to the District Court stated that he admitted to acting as an aider and that his drinking and gambling led to his offending.[26] However, in his statement to the delegate, the Applicant stated that the wiring was meant to be “normal wiring” and he was not aware of the subsequent usage which had infringed the law.[27]
(b)Little weight should be given to any suggestion that the Applicant's family could be protective factors, noting that the Applicant had his family's support at the time of offending.
(c)While the Applicant has claimed he has broken ties with his previous associates and quit drinking and gambling, no evidence has been provided of any efforts the Applicant has made to source programs for rehabilitation either presently or in the future, noting that it has previously been identified that the Applicant may benefit from treatment focusing on substance use issues.[28]
[26] R3, S1/1.
[27] R2, G15/128.
[28] R3, S6/42; R3, S7/46.
In her statutory declaration,[29] Ms Dinh makes the following submissions relevant to this consideration:
(a)The Applicant was a heavy gambler and drinker in both Vietnam and in Australia.[30]
(b)To support his addiction, the Applicant borrowed money from his friends. To repay these debts, rather than going to his family and losing face, he became involved in the criminal activities for which he was convicted.[31]
(c)The Applicant is very remorseful for breaking the law.[32]
(d)When the Applicant was released on bail, he worked for his son’s turf business in Perth. He has rehabilitated and reintegrated into society while on bail with the guidance of Ms Dinh and her brother. He has promised to cut off contact with the negative people who got him into offending. He has taken responsibility for his offending.[33]
(e)The Applicant is remorseful for his past offending, had never before been involved in anything illegal and will never again do anything illegal.[34]
(f)If the Applicant is allowed to stay in Australia, he will be able to work full-time in his son’s turf business in Perth.[35]
(g)The Applicant has demonstrated remorse, his offences were out of character and his chances of recidivism are “very low”.[36]
[29] A1.
[30] A1, para [2].
[31] A1, paras [3]–[4].
[32] A1, para [7].
[33] A1, paras [9]–[11].
[34] A1, paras [19]
[35] A1, para 36.
[36] A1, para [55].
Consideration
The Applicant’s evidence at the hearing was, in a number of respects, not supportive of, or contradicted the submissions in Ms Dinh’s statutory declaration. In particular, the Applicant’s evidence as to the degree of his addiction to drinking and gambling, and therefore his need for rehabilitation, did not support the submissions made by Ms Dinh in that regard, nor did his evidence support the submissions made on his behalf prior to sentencing in the District Court.[37] Further, statements made by the Applicant included in the G documents (the truth and accuracy of which the Applicant confirmed under affirmation)[38] and his evidence at the hearing, significantly call into question the submissions made on his behalf, both in these proceedings and in the District Court, that he accepts responsibility for the crimes for which he was convicted.
[37] R3, S1.
[38] transcript at 18–20.
In that regard, the Tribunal refers to the submissions made in paras 2 and 3 of Ms Dinh’s statutory declaration referred to in [51] above and to the submissions referred to in sub-paras (b), (c) and (e) in [61] above. The Tribunal also refers to the following paragraphs in the outline of sentencing submissions made on behalf to the Applicant in the District Court:
1) Mr. Dinh admits the facts that he acted as an aider.
…
3) He is remorseful and unlikely to reoffend.
…
6) In Vietnam he was a heavy gambler and regularly used alcohol, as this was a very common part of his culture and socializing at that time, and he continued it here in Australia with Vietnamese friends, which unfortunately led him to his offending. [39]
[39] R3, S1.
The Applicant’s son also provided a statement (although he did not give evidence at the hearing).[40] In that statement the Applicant’s son said:
… Due to living half of his life in a society where gambling and alcohol are common (Vietnam), he couldn’t resist getting dragged into the bad habits along his friends here in Perth. In order to support his bad addictions, he eventually gave a helping hand to the negative people of the community.
He has repeatedly admitted his action was unlawful and may in fact harm people in the community.
(Without alteration.)
[40] R3, S1/3.
At the hearing, however, the Applicant downplayed his drinking and gambling problems. The above passage from his son’s statement was put to the Applicant in cross-examination and the following exchange took place:
COUNSEL: Are you saying that this statement is wrong?
APPLICANT
(through the interpreter): Yes. It’s incorrect. It’s correct in Vietnam, yes, but not here. I just spend occasionally with friends, not all the time.[41]
[41] transcript at 39.
The Applicant was then taken to para 6 of the sentencing submissions quoted at [63] above:
COUNSEL: Are you saying that that statement is also incorrect? Those submissions are also incorrect?
APPLICANT
(through the interpreter): It’s partly correct; not as bad as in Vietnam. I did meet my Vietnamese friend around twice a week.
COUNSEL: So if I understand your evidence, what you’re saying is that you did drink and gamble a lot in Vietnam, but when you came to Australia, not as much; is that right?
APPLICANT
(through the interpreter): Yes. A lot more in Vietnam.
COUNSEL: Okay. Would it be correct to say that drinking and gambling has been something you’ve done your whole life?
…
APPLICANT
(through the interpreter): No, because in Vietnam it’s the way to socialise – to work.
COUNSEL: So what do you mean by that? Are you saying that it’s not something you’ve done your whole life?
APPLICANT
(through the interpreter): Yes. It’s not the one I done for whole life.
COUNSEL: So when was it that you weren’t – that you say you weren’t drinking and gambling?
APPLICANT
(through the interpreter): I only start drinking and gambling in Vietnam only when I was 30 years old. Just started to socialise, to – this is the way to work in Vietnam, there. But once I come over, of course, I still do it, but not as bad as in Vietnam; with my friends, occasionally, only.[42]
[42] transcript at 40.
The Applicant was asked in cross-examination whether he had undertaken any programs while in prison:
COUNSEL: So have you undergone any programs in relation to gambling or drinking in prison?
APPLICANT
(through the interpreter): No. I wasn’t that bad. Wasn’t addicted.
…
TRIBUNAL: The question is, if he is allowed back into the community, will he undertake any rehabilitation programs for gambling or alcohol?
APPLICANT
(through the interpreter): Yes, I will.
TRIBUNAL: But his view is he’s not addicted to either gambling or alcohol.
APPLICANT
(through the interpreter): Yes, correct.
TRIBUNAL: How is he going to be rehabilitated from something that he says he doesn’t have a problem with?
APPLICANT
(through the interpreter): Yes. I want to join the program to learn more about it.[43]
[43] transcript at 46–7.
The end result of the above is that it is clear that the Applicant, firstly, has not undertaken any programs to address his alcohol abuse or gambling and, secondly, does not consider that he has a problem with gambling or alcohol. That is obviously a concern for the prospects of his rehabilitation.
Another cause for concern in relation to the Applicant’s prospects of rehabilitation and something that indicates a higher likelihood of reoffending, is that, despite repeated submissions that the Applicant accepts responsibility for his criminal activities, there are strong indications that he does not. In his letter dated 21 December 2020 to the delegate,[44] the Applicant made the following claim:
… I was loath to do an electrical wiring for the house owner who approached me. The wiring was meant to be normal wiring to me and I was not aware of the subsequent usage which had infringed the Law. I was arrested at the shop where I was working and I cooperated with the investigation; Police had confirmed that I was not involved in growing of illicit drug, my DNA was not found in the growing area or equipment: My DNA was only found on an old Coke can outside the house. However, I was charge for my role of wiring and I pleaded guilty to the charge without claiming trial and wasting the Court’s precious time.
(Without alteration.)
[44] R2, G15/128.
The Applicant was cross-examined on his involvement in the setting up of the house for the growing of marijuana:
COUNSEL: And so, as a part of this, is it correct that you agreed to do wiring for a house that was growing cannabis?
APPLICANT
(through the interpreter): Yes. Correct. Yes. Just give them a hand, like, pulling the electrical cord.
COUNSEL: And were you aware that the purpose of this wiring was to ensure that the illegal activities within the house was not detected?
APPLICANT
(through the interpreter): Yes, I know.[45]
[45] transcript at 43.
Counsel then took the Applicant to the statement in his letter of 21 December 2020 quoted at [69] above. The following exchange took place:
COUNSEL: Can you explain why you stated this in your statement if you were aware of the illegal activities?
APPLICANT
(through the interpreter): At that moment, I didn’t know that I infringed the law, but on the – when later on, when I was arrested, the police and the court explained to me that is illegal, then I know.
COUNSEL: But you were aware that they asked you to do this in order to grow cannabis, is that right?
APPLICANT
(through the interpreter): Yes, later on when everything is set up, then I know for growing cannabis.
COUNSEL: Well, what you said before was that the negative people had asked you to give them a hand to grow cannabis.
APPLICANT
(through the interpreter): Yes.
COUNSEL: And that you agreed to do the wiring for the house in order to grow cannabis. So that’s inconsistent with your evidence just now that you only learned later that it was for growing cannabis.
APPLICANT
(through the interpreter): Only everything is done, after setting up, I know that for growing cannabis.[46]
[46] transcript at 44.
A similar failure to take responsibility for his offending is evidenced by his statement in his Personal Circumstances Form that:
I did not know it was illegal to grow marijuana…[47]
[47] R2, G12/110.
Even allowing for the Applicant giving evidence through an interpreter, the Applicant’s evidence was evasive and inconsistent. His claims of not knowing that what he was doing was illegal, and further, that he did not know the purpose for which the house was to be used, are inconsistent with his pleas of guilty and are contrary to the facts upon which Wallace DCJ sentenced the Applicant. Her Honour found that:
… you offended with the knowledge that you were aiding the cultivation of a prohibited drug, namely cannabis, but you did it nevertheless purely for profit, you say to support your gambling and drinking habits. Commerciality arises, of course, because you were paid in cash for your services.[48]
[48] R2, G6/33–4.
Even if the Tribunal were minded to accept the Applicant’s claim that he did not know the purpose for the wiring and the use to which the house was to be put, which the Tribunal does not accept, the assertions made by the Applicant in his letter of 21 December 2020,[49] in his Personal Circumstances Form[50] and at the hearing, are belied by his pleas of guilty, Wallace DCJ’s findings which formed the basis of her sentencing and the admissions made by the Applicant’s counsel at the time of sentencing.
[49] R2, G15/128.
[50] R2, G12/110.
In any event, apart from not believing the Applicant, the Tribunal cannot go behind or impugn the convictions or the essential facts on which they were based. In the present case the cancellation of the Applicant’s visa was based on the Applicant’s convictions on 22 September 2020 for cultivating a prohibited plant with the intent to sell or supply and fraudulent appropriation of power for which he received terms of imprisonment totalling 28 months.[51] Justice Moshinsky in NDBR v Minister for Home Affairs[52] at [47] said:
I accept the proposition that, where a conviction or sentence, or both, are the foundation of the exercise of a power vested in the Minister, it is not open to the Tribunal, when reviewing the decision of the Minister, to impugn or go behind the conviction or sentence or both (as the case may be): see Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 39 ALR 649; 5 ALD 135 at 138-139 per Fisher and Lockhart JJ; Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 42 ALR 209; 63 FLR 441 at 445-446, 449-450 per Fox J, at 468-469 per Sheppard J; SRT at [40]-[48] per Branson, Lindgren and Emmett JJ; Ali at [42] per Branson J; LFF at [42] per Beach, McLeish and Niall JJA. As noted by the applicant, these cases were helpfully reviewed by Bromberg J in HZCP at [41]-[77].
[51] R2, G5/28.
[52] [2019] FCA 1631.
As noted by Moshinsky J in the above passage, Bromberg J in HZCP v Minister for Immigration and Border Protection[53] (at [41]–[77]) summarised the relevant authorities and, at [78], concluded:
I would respectfully adopt the distillation of the case law described by Beach, McLeish and Niall JJA in LLF. On that basis the applicable principles are these:
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
[53] [2018] FCA 1803.
The essential facts upon which the convictions and sentences were based were set out by Wallace DCJ in her sentencing remarks cited at [48] above and they are the facts upon which this Tribunal proceeds.
Despite the claims by the Applicant and those who have given statements of support, including Ms Dinh and the Applicant’s son, that the Applicant has rehabilitated, the facts are that:
(a)he has not undertaken any program to address his gambling or drinking addictions;
(b)notwithstanding his heavy reliance, both before the District Court and this Tribunal, on his drinking and gambling addictions to explain his criminal activities, he denies that he has a problem with either;
(c)He has little, or no, insight into his criminal behaviour. He continues to deny any awareness that the illegal wiring that he was installing was part of an operation to grow cannabis (see [71] above) and claims that he was not aware that growing marijuana was illegal (see [72] above). The Tribunal accepts, as it must in any event for the reasons set out in [75]–[76] above, the findings of Wallace DCJ quoted at [73] above.
The Tribunal is also conscious of the fact that the claimed protective factors identified by the Applicant as reducing his risk of reoffending, being the support of his family and his employment, were present, or at least available, when he committed the offences. Also, it was not clear where or with whom the Applicant would live if he were allowed to stay in Australia. His evidence seemed to switch between living with his son in Perth and working in his son’s turf business or returning to Melbourne to live with his daughter and assist her with her business and looking after her children. It seems clear that there is no definite plan in place.
The above circumstances do not augur well for the Applicant’s rehabilitation. The Tribunal acknowledges that the Applicant was released into the community on bail following his arrest on 9 September 2019 up until the time of his sentencing on 22 September 2020 and that he did not offend during that period and that while on bail he was employed by his son in his family run business, Western Turf.[54]
[54] R3, S1/3.
The Tribunal assesses the Applicant’s likelihood of reoffending as moderate to medium. Of greatest concern is the Applicant’s failure to undertake any programs to address his drinking and gambling issues, or even to recognise them, and his lack of insight into his offending behaviour. The harm that would be caused if the Applicant were to repeat the offending that he has engaged in in the past is serious. The Tribunal finds that the first primary consideration weighs heavily against revocation of the cancellation of the Applicant’s visa.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
The Minister concedes that the crimes for which the Applicant has been convicted do not involve family violence, as that term is defined in para 4(1) of Direction 90, and that there is no evidence that the Applicant has been involved in family violence. The Minister says that this consideration is not relevant. The Tribunal agrees.
Third primary consideration: The best interests of minor children in Australia (para 8.3)
Paragraph 8.3 of Direction 90 provides:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to … not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The parties’ submissions
The Applicant has no minor children in Australia. He has four minor grandchildren in Australia. They are two daughters of Ms Dinh, one aged 16 and the other aged 13 who live with Ms Dinh in Melbourne, and two children of the Applicant’s son, a daughter aged seven and a newborn son who live in Perth.
In her statement provided to the Department on 17 November 2020 Ms Dinh says:
… [I] also have 3 children, during this time in Melbourne I was so lucky to have my dad here with me, who has helped me a lot with the kids, taking them to and from schools, getting the food ready for us when we get homes, so I can concentrated on my business.[55]
(Without alteration.)
[55] R2, G11/89.
In her statutory declaration,[56] Ms Dinh, under the heading “Best Interests of Australian children and grandchildren”, says:
[56] A1.
28.My children need his grandfather to be there as a man to support and comfort my children as they don't have their father beside them. My father can be there for my children as I am very busy with managing by business and have no time to care for my children at this younger age. I need my father support and I wanted him to continue to stay back in Australia.
(Without alteration.)
Under the heading “Strength, Nature and Duration of Ties”, Ms Dinh says:
40.If my father to remove from Australia all family member would be psychologically devastating for us and my father will face significant emotional hardship in begin separated from us and himself left in Vietnam of his age and health problem.
(Without alteration.)
Finally, under the heading “Conclusion”, Ms Dinh says:
My father children and grandchildren also reside in Australia and don' t wanted him to be removed.
(Without alteration.)
The Applicant’s son does not mention his children in his statement.[57] The Applicant’s son’s wife, in a statement dated 11 September 2020,[58] advised that following his release on bail, the Applicant lived with his son and her and that:
At home, he has been a responsible person helping with the work at home and also helping to look after our children.
… I would like to state that our children are happily having their grand-father … around them and we are also happy having him around since he is a person with responsibility.
(Without alteration.)
[57] R3, S1/3.
[58] R3, S1/4.
There were also letters from the Applicant’s adult granddaughter[59] and two of his minor grandchildren.[60] Both of those statements from the minor grandchildren describe what their parents do, however, other than saying that they would like their grandfather to be with them, that he is growing older and requires the family to care for him, they do not say anything about the role that the Applicant plays or would play in their lives.
[59] R2, G11/116.
[60] R2, G11/117; R2, G11/118.
The Minister’s SFIC contends:
(a)The statements provided by Ms Dinh and the three grandchildren all attest to the applicant previously helping the children attend school in Victoria and helping out at home.
(b)Ms Dinh and the Applicant’s grandchildren have expressed their desire to have the Applicant return home.
(c)While it can be accepted that the Applicant and his granddaughters in Victoria have a positive relationship, this relationship is a non-parental one[61] and while the Applicant may have been a caregiver for the children in the past, he has not lived in Victoria since 2016 when he moved to Western Australia.
(d)Based on the statements provided by the Applicant’s son and his wife, it can be accepted that the Applicant has a positive relationship with his grandchildren in Western Australia; however, it is a non-parental one.[62]
(e)In circumstances where the Applicant's grandchildren already have other persons who already fulfil a parental role,[63] the positive role that the Applicant would play in their lives would accordingly be unlikely to be a parental one,[64] the Applicant has only been in Australia for a period of five years,[65] and the Applicant is able to maintain contact with his grandchildren by way of telephone, email or other electronic communications.[66]
(f)The Minister contends that the weight to be provided to this consideration should be limited.
[61] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021) (Direction 90) para 8.3(4)(a).
[62] Direction 90 para 8.3(4)(a).
[63] Direction 90 para 8.3(4)(e).
[64] Direction 90 para 8.3(4)(b).
[65] Direction 90 para 8.3(4)(a).
[66] Direction 90 para 8.3(4)(d).
Consideration
The Tribunal agrees with the Minister’s above contentions. The Applicant’s relationship with his grandchildren has been limited. As noted by the Minister, the Applicant did not arrive in Australia until 2015. He lived for a relatively short period, around two years, with his daughter and her children in Melbourne before coming to Perth in 2017.[67] It is the case, as pointed out by the Minister, that there have been extended periods of absence or periods of limited contact,[68] there is no reason why contact cannot be maintained through other means[69] and that other persons already fulfil the parenting roles for these children.[70] The Tribunal accepts that, although scant, there is evidence of the grandchildren’s view being that they want their grandfather to stay in Australia.
[67] transcript at 37–8.
[68] Direction 90 8.3(4)(a).
[69] Direction 90 para 8.3(4)(d).
[70] Direction 90 para 8.3(4)(e).
The Tribunal finds that the best interests of the Applicant’s minor grandchildren would be served by the revocation of the cancellation of the Applicant’s visa but that, for the reasons identified in [90] above, only minor weight should be given to this consideration.
Fourth primary consideration: Expectations of the Australian community (para 8(4))
Paragraph 8.4 of Direction 90 relevantly provides:
(1)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.
(2)In addition … non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/ material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
The Tribunal also refers to the principles set out in para 5.2 of Direction 90 as set out in [38] above.
As noted at [36] above, Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[71] (NTTH) (at [194]) noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in “Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA” (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs[72] (FYBR).
[71] [2021] AATA 1143.
[72] [2019] FCAFC 185.
Senior Member Morris at [195] and [196] of NTTH summarised the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR…
As it did in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[73] this Tribunal respectfully agrees with Senior Member Morris.
[73] [2021] AATA 1208.
In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[74] this Tribunal summarised the effect of the Full Court’s judgment in FYBR and the current state of the law as follows:
[74] [2020] AATA 3953.
156.… The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].
157.Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the High Court (Kiefel CJ and Keane J) refused special leave.
158.Justice Stewart in FYBR (FC) found:
89.It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90.However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91.The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
159.Justice Charlesworth also observed:
75.Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
...
79....The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
160.Member Burford put it in Rehman as follows:
173.It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa.
Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
174.However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other consideration[s].
(Footnotes omitted.)
Due to the application of the “norm”, as it is now referred to, in para 8.4(1) of Direction 90, and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the revocation of the cancellation of the Applicant’s visa. Informed by the principles in para 5.2 of Direction 90, in particular subparas (3) and (4) (see [38] above) the Tribunal assesses that moderate weight should be given to this consideration.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 90 sets out the “Other considerations” to be taken into account as follows:
(1)In making a decision under section ... 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a) international non-refoulement obligations;
(b) extent of impediments if removed;
(c) impact on victims;
(d) links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
International non-refoulement obligations (para 9.1)
Neither party made any submission on this consideration and the Tribunal is satisfied that there are no non-refoulement obligations owed by Australia to the Applicant. This is not a relevant consideration in this matter.
Extent of impediments if removed (para 9.2)
Para 9.2 of Direction 90 provides:
(1)Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) the non-citizen’s age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The parties’ submissions
No specific submissions were made by the Applicant in relation to this consideration, however, the evidence did disclose that the Applicant, as well as being elderly, suffers from a number of physical and potentially psychological ailments. In her statutory declaration,[75] Ms Dinh stated the following in relation to the Applicant’s health (without alteration):
[75] A1/2, paras 9–13.
(a)“… in 2005 has Gord operation, in 2010 his has Ventricular and Hypertension operation. In 2018 his also have a Laparotomy in Vietnam. Tachycardia and his health were not the same after the operation”.
(b)“He has poor health, which currently suffering from a stomach (helicobacterpylori) infection and since 2020 his has a serious hearth condition and hypertension”.
(c)“Prior to my father arrest, I notice that he has Major Depressive, he was psychological and I told my father to seek a doctor which his need psychiatric treatment on his mental break down emotion…”
(d)“… My father is old and also has heart condition and suffering hypertension that is becoming more serious as he gets even older and need his child support him in the future”.
(e)“My father is currently taking Medication:
-Nexium 24HR Once daily Dosing 20mg 1 Tablets (Esomeprazole)
-Noten 50mg Tablet (Atenolol) 1 tablets mane
-Sevikar 40/5 40mg; 5mg Tablet (Olmesartan medoxomil, Amlodipine Besylate) 1 tablet in the evening.”
The Tribunal asked Ms Dinh whether there would be impediments in the Applicant establishing himself if he were to return to Vietnam. Her answer was:
MS DINH: So when he lived in Vietnam, I mean, it’s like his whole life there. It’s fine. But Vietnam in the last few years, it has changed a lot. It changes a lot. Everything is just so different. I don’t think – and my father now, he’s getting to – he’s, you know, 60-something. He’s 60 years old today, and he got nothing, nothing in Vietnam. So if he goes back to Vietnam, I don’t think he’s able to find work, nowhere to stay at first. But with me supporting him financially, how much can I support? I can’t support him 1000, 2000. That’s a lot for me. I mean, one or two hundred couldn’t do anything in Vietnam.
TRIBUNAL: Are you aware of any medical condition that would prevent him from working?
MS DINH: My father is very weak. He could not eat a lot of things. You see how skinny he is. So I don’t think he has that health to be working in Vietnam.
TRIBUNAL: And that’s because of gastric problems, is it?
MS DINH: Yes.[76]
[76] transcript 59–60.
The Minster’s SFIC contended that:
(a)The Applicant lived in Vietnam until he was 54 years old.
(b)There are no language or cultural barriers.
(c)Even if the Applicant were to face some difficulty in re-establishing himself in Vietnam, that difficulty would be limited and would only present as a short-term hardship and would not preclude resettlement.
(d)The Applicant has only been absent from Vietnam for approximately five years and therefore, it should be accepted he is likely to have a support network there, including family members.[77]
(e)While the Applicant does have some health issues and while the medical support in Vietnam may be less than that provided in Australia, there is no evidence that he would be unable to access the medical support he requires in Vietnam. Further, there is nothing to suggest that the level of medical support he could access in Vietnam would be different to the medical support that could be accessed by other Vietnamese citizens.[78]
(f)While the Applicant claims that he will have difficulty in finding employment in Vietnam, he would likely face similar, if not more significant issues finding employment in Australia on the basis of his age and lack of English skills.
(g)The Applicant's experience working as an electrician in Vietnam would assist him in finding employment.
(h)Limited weight should be given to this consideration.
[77] Direction 90 para 9.2(1)(b).
[78] Direction 90 para 9.2(1).
Consideration
The Tribunal agrees with the Minister that there would be no language or cultural barriers if the Applicant were to be returned to Vietnam. However, the Tribunal accepts that the Applicant’s age and his medical conditions would limit his ability to work which would constitute an impediment to him establishing and maintaining a basic living standard in the context of what is generally available to citizens of Vietnam.
The Minister does not identify the basis upon which he makes the assertion that any hardship that the Applicant would face would be short-term and there is no evidence, or at least no evidence identified by the Minister, to support that assertion.
The Minister’s contention that there is no evidence that the level of medical care that the Applicant would be able to access would be any less than that which would be available to other Vietnamese citizens is not to the point. The relevant consideration is whether, taking into account the Applicant’s age and health (and the other considerations identified in subparas (b) and (c)), the Applicant would face an impediment or impediments in establishing and maintaining basic living standards in the context of the basic living standards that other citizens of Vietnam enjoy. The Applicant having access to the same medical and social benefits as other citizens of Vietnam does not go to the core consideration, namely, whether there would be impediments in him establishing and maintaining the relevant basic living standards. The mere fact that he might have access to the same level of medical and social benefits as other citizens of Vietnam does not mean that he will not face impediments because of his age and medical conditions, in establishing and maintaining basic living standards.
The Minister’s submission appears to be made on the basis that the reference to “what is generally available to other citizens of that country” is a reference to the “social, medical and/or economic support available to them in that country” referred to in subpara (c). The context in which the words in parentheses appear in the body of subpara (1), however, is the context of “the basic living standards” of citizens of that country. In other words, the reference to “what is generally available to other citizens” is a reference to the basic living standards generally available to other citizens, not the services such as medical services which might be available to the Applicant as identified in subpara (c).
Similarly, the submission that the Applicant would face similar or greater issues in obtaining employment in Australia is not a matter relevant to this consideration. The consideration is whether he would face impediments in establishing and maintaining basic living standards in Vietnam. Whether he would face similar issues in obtaining employment in Australia (noting the Applicant’s son’s statement that he would employ the Applicant in his business) is not relevant to the consideration as expressed in para 9.2.
The Tribunal finds that the Applicant would, because of his age and medical conditions, face impediments in establishing and maintaining basic livings standards if he were to return to Vietnam. This consideration weighs in favour of revocation of the cancellation of the Applicant’s visa. Moderate weight should be given to this consideration.
Impact on victims (para 9.3)
Paragraph 9.3 of Direction 90 is as follows:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Neither party made any submission on this consideration.
The wording of this consideration is materially the same as that of para 14.4 of Direction 79. As this Tribunal noted in respect of the same provision in Direction 79 in Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[79] at [109]–[111] and in Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[80] at [138]–[139], although para 9(1)(d) of Direction 90 and the heading to para 9.3 refer only to impact on victims, para 9.3(1) requires consideration of the impact of a decision not to revoke the cancellation of the visa on members of the community, including victims (emphasis added).
[79] [2020] AATA 4171.
[80] [2020] AATA 5165.
Insofar as a consideration broader than the impact on victims is required, then one aspect of the possible impact of the Applicant being permitted to stay (i.e. a decision to revoke the cancellation) has been dealt with under the first primary consideration, the protection of the Australian community. The impact of the Applicant’s removal (i.e. a decision not to revoke) is also considered below in the consideration of the Applicant’s links to the Australian community under para 9.4 of Direction 90 and in considering the best interests of minor children under para 8.3. Insofar as the impact on those members of the Australian community is to be considered, the Tribunal does so under those considerations.
Links to the Australian community (para 9.4)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Paragraph 9.4.1 of Direction 90 is as follows:
Strength, nature and duration of ties to Australia (para 9.4.1)
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The parties’ submissions
In her statutory declaration[81] Ms Dinh submits that:
(a)The Applicant has ties to the Australian community through three of his children and his five grandchildren being in Australia.
(b)The Applicant no longer has any assets in Vietnam.
(c)If he is allowed to stay in Australia, the Applicant will work with his son.
(d)She is a single mother with a growing business and she needs her father’s support to look after her children so that she can concentrate on her business.
(e)Deporting her father would have an adverse effect on her mental wellbeing, as well as that of her brother and the Applicant’s grandchildren.
(f)The Applicant’s health and mental condition would deteriorate if he were to be sent back to Vietnam.
[81] A1.
The Minster’s SFIC contends:
(a)The Applicant has resided in Australia since 2015 and appears to have returned to Vietnam on several occasions during his period of residence in Australia.
(b)The Applicant's offending commenced less than four years after he arrived in Australia.
(c)The applicant’s work history is unclear. The Applicant has given several inconsistent versions of his work history. The Applicant indicated in the personal circumstances form provided on 24 November 2020 that between 2015 and 2020, his occupation was “home duties” and “babysitting” in Melbourne, and that in 2020 he worked as a kitchenhand.[82] However, in his statement dated 21 December 2020, he stated that he came to Australia and “worked as an electrician at an electrical shop”.
(d)Three of the Applicant's children and five of his grandchildren reside in Australia and are likely to suffer emotional and practical hardship if the Applicant's visa cancellation is not revoked.
(e)This consideration does not outweigh the significant weight that should be provided to the primary considerations in favour of non-revocation of the visa cancellation.
[82] R2, G12/111.
Consideration
The Applicant appears not to have made any, or many, contacts with the Australian community outside his immediate family. Those connections that he did make outside his family appear to have been with, what he describes as, negative people who induced him into committing crime. In the end there is no evidence that he has developed any possible ties with the Australian community or with Australian citizens other than the members of his immediate family.
In relation to the considerations identified in para 9.4.1(2)(a), the Applicant has resided in Australia for a relatively short period. He arrived when he was 54 years old, he started offending shortly after arriving and he has not contributed in any material way to the community. Less weight therefore must be given to the consideration under para 9.4.1(2)(a).
The Tribunal accepts that the Applicant’s removal from Australia would have an emotional impact on the Applicant’s children and grandchildren in Australia. It is obvious that they love and care for the Applicant and want him to stay. They are (or at least Ms Dinh is) also concerned about the effect that deporting the Applicant will have on the Applicant’s mental and physical health. None of the Applicant’s children or grandchildren in Australia is dependent on the Applicant for financial or any other form of support.
The Tribunal is satisfied that, taking into account the matters identified in para 9.4.1 and 9.4.2 of Direction 90, this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa, however, for the reasons set out above at [119]–[121] only minor weight should be given to it.
Impact on Australian business interests (para 9.4.2)
In assessing the Applicant’s links to the Australian community, the decision-maker is also required to have regard to the impact on Australian business interests. Paragraph 9.4.2 of Direction provides:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Neither party made a submission on this consideration. The Tribunal is satisfied that it is not relevant in the present case.
THE WEIGHING EXERCISE
Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account. It provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. The Tribunal is guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[83] and the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ.[84]
[83] [2018] FCA 594; (2018) 74 AAR 545.
[84] [2018] FCAFC 217; (2018) 266 FCR 591.
The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. ...
The Tribunal follows the approach directed by the above cases.
Looking at the first primary consideration, the protection of the Australian community, for the reasons set out above, the Tribunal assesses the likelihood of the Applicant engaging in further criminal or other serious conduct as moderate to medium, and the harm that would be caused if the Applicant were to repeat the offending as serious. The Tribunal finds that the first primary consideration weighs heavily against revocation of the cancellation of the Applicant’s visa.
The second primary consideration, family violence, is not relevant in this case.
The third primary consideration, the best interests of minor children, for the reasons set out in [90]–[91] above, weighs in favour of the revocation of the cancellation of the Applicant’s visa. Only minor weight should be given to this consideration.
The fourth primary consideration, the expectations of the Australian community, as it must, weighs against the revocation of the cancellation of the Applicant’s visa. For the reasons set out at [98] above, moderate weight should be given to this consideration.
In relation to the “other considerations” identified in Direction 90, the consideration of the extent of impediments weighs in favour of revocation of cancellation of the Applicant’s visa and moderate weight should be given to it. The consideration of the impact on victims as directed by para 9.3 of Direction 90, insofar as it encompasses the impact on members of the community other than victims, is covered by the Tribunal’s considerations of other paragraphs of Direction 90 (see [114] above) and insofar as para 9.3 calls upon the Tribunal to consider the impact of the Decision on victims, there is no evidence before the Tribunal to make any assessment. The consideration of the strength, nature and duration of the ties in assessing the Applicant’s links to the Australian community, weighs in favour of the revocation of the cancellation of the visa. For the reasons set out earlier in this decision (see [119]–[122] above) only minor weight should be given to this consideration.
Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against the revocation of the cancellation of the Applicant’s visa, the Tribunal finds that the considerations against revocation outweigh those in favour of revocation. Accordingly, the Tribunal does not find that there is another reason why the Decision should be revoked.
DECISION
The Decision dated 24 February 2021 not to revoke the cancellation of the Applicant's Contributory Parent (Migrant) (Class CA) (Subclass 143) visa pursuant to s 501CA(4) of the Act is affirmed.
I certify that the preceding 135 (one hundred and thirty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...[SGD].....................................................................
Associate
Dated: 20 May 2021
Date of hearing: 11 May 2021 Advocate for the Applicant: Ms T Dinh Counsel for the Respondent: Ms C Saunders Solicitors for the Respondent: MinterEllison
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