Dinh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 2880
•12 August 2020
Dinh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2880 (12 August 2020)
Division:GENERAL DIVISION
File Number: 2020/3075
Re:Dung Tien Dinh
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member C.J. Furnell
Date:12 August 2020
Place:Melbourne
The Tribunal affirms the decision under review.
......[sgd]..................................................................
Senior Member C.J. Furnell
Catchwords
MIGRATION – mandatory cancellation of Five Year Resident Return (Class BB) (Subclass 155 visa – citizen of Vietnam – substantial criminal record – serious offending – drug related offending – convicted of stalk another person – concept of violence – Direction 79 – protection of the Australian community – expectations of the Australian community – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Sentencing Act 1991 (Vic)Personal Safety Intervention Orders Act 2010 (Vic)
Cases
Attorney-General (Qld) v Phineasa (2013) 221 A Crim R 200
Breeze v R (1999) 106 A Crim R 441
Director of Public Prosecutions v Perry (2016) 50 VR 686
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
FYBR v Minister for Home Affairs (2019) 374 ALR 601
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Mayes v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1036
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
R v Butcher [1986] VR 43
R v Galas (2007) 18 VR 205
Tuimalatu and Minister for Home Affairs (Migration) [2019] AATA 719
Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409
XRXL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 813Secondary Materials
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954)
Direction No 79 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member C.J. Furnell
12 August 2020
In this proceeding the issue before the Tribunal is whether a discretion conferred by the Migration Act 1958 (the Act) to revoke a decision to cancel Mr Dinh’s Five Year Resident Return (Class BB) (Subclass 155) visa ought be exercised.
For reasons which I will get to shortly, I have decided that the revocation discretion should not be exercised in this case.
BACKGROUND
On 5 December 2018 Mr Dinh’s visa was subject to mandatory cancellation.[1]
[1] G131. References to “G” and “SG” are references to documents, and supplementary documents, provided by the Respondent under s501G of the Act.
The cancellation was mandatory because, under s501(3A) of the Act, a delegate of the Minister was satisfied that:
·Mr Dinh did not pass the character test set out in s501 of the Act because he had a substantial criminal record,[2] having been sentenced to a term of imprisonment of 12 months or more;[3] and
·Mr Dinh was then serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of an Australian State.
[2] As defined in Act, s501(7).
[3] Act s501(7)(c).
Mr Dinh made representations about revocation of that visa cancellation decision in response to, and in accordance with, the requisite invitation to do so.[4]
[4] G49.
As a result, the Respondent could have revoked the decision to cancel Mr Dinh’s visa if satisfied that he passed the character test (as defined by s501 of the Act) or that there was another reason why the visa cancellation decision should be revoked.[5]
[5] Act, s501CA(4).
On 19 May 2020, however, a delegate of the Respondent decided not to do so.[6]
[6] G7.
Mr Dinh has applied to the Tribunal for review of that decision.
In conducting that review, the Tribunal performs the same function and exercises the same power as the primary decision-maker.[7]
[7] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [14],[15] and [51].
As such, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that Mr Dinh passes the relevant character test or that there is another reason why the visa cancellation decision should be revoked.[8]
[8] I note that, if I were to be so satisfied, the decision would have to be revoked. I would not have any residual discretion to nevertheless refuse revocation: Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at [38]; Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [21].
Put briefly, on Mr Dinh’s behalf, while it is accepted that he does not pass the character test, it is contended that “his substantial ties to the community, his general reform and his employability all count in his favour in deciding that there is another reason why the mandatory cancellation” of his visa should be revoked.[9]
[9] A SFIC [18].
As is apparent from my decision in this matter, I do not agree.
Material before me
In arriving at that decision, I have had regard not only to the submissions made and evidence adduced at the hearing of this proceeding but also to documentary material lodged with the Tribunal prior to the hearing.
That documentary material comprised a binder of documents (and a binder of supplementary documents, in two parts) provided by the Respondent under s501G of the Act (which I refer to as the “G” and “SG” documents, respectively), the Respondent’s statement of issues, facts and contentions of 10 July 2020 (R SFIC), a personal statement made by Mr Dinh on 16 July 2020 and Mr Dinh’s statement of facts and contentions of 21 July 2020 (A SFIC).
Background facts
Mr Dinh is a 37 year old citizen of Vietnam. He first arrived in Australia in November 1996 when he was 13 years old. After arriving in Australia, he lived with his father, step-mother, three siblings and three step-siblings.
Mr Dinh said he struggled at school due to language barriers and subsequently became “withdrawn and socially isolated”. He left school in year 10.[10] He left his family’s home when he was 17. By the age of 18 he had started using and trafficking heroin.
[10] G80, submission of 5 May 2020.
Mr Dinh explained that, while beforehand it had been daily use, in the last ten years and prior to his incarceration, his use of illicit drugs has been relatively intermittent, sometimes on the weekends, sometimes fortnightly and sometimes even less frequently.[11]
[11] Uncontroverted evidence of Mr Dinh at the hearing of this proceeding.
Since 2004 his treatment with methadone has been continuous or, at least relatively continuous (given that Mr Dinh gave evidence that for a three month period in 2015 he endeavoured to cease using both illicit drugs and methadone).
He has never been formally employed in Australia (albeit he says he worked for his father, as a handyman, in the 2010 to 2016 period).[12]
[12] G93; ASFIC [7].
He has no partner or children.
He has been in custody since late February 2018 (either in prison or immigration detention).
I turn now to Mr Dinh’s history of offending.[13]
[13] G27, Criminal Intelligence Commission check results report of 20 January 2020.
As submitted by the Respondent, that history is extensive. He has been before the courts on no less than 16 occasions over the last 20 years, with the first occasion occurring when he had been in Australia for around three and a half years.
The following history is derived from a National Criminal History Check Results Report dated 20 January 2020. On:
·3 November 2000 Mr Dinh was convicted of resisting police, for which he was fined.
·1 February 2001 Mr Dinh was convicted of possessing the proceeds of crime and failing to answer bail, for which he was sentenced to a period of one month and two months (respectively) detention in a youth training centre.
·2 February 2001 Mr Dinh was convicted of trafficking heroin (two charges), possessing heroin (two charges), failing to answer bail (two charges), possessing property being the proceeds of crime and resisting police, for which he was given a community based order.
·6 February 2001 Mr Dinh was convicted of possessing heroin, theft of a motor vehicle, failing to answer bail and unlicensed driving, for which he was given a community based order.
·3 May 2002 Mr Dinh was convicted of breaching a community based order, and resentenced on his convictions of 2 February 2001 (trafficking heroin (two charges), possessing heroin (two charges) and possessing property being the proceeds of crime) and sentenced to six months imprisonment, sentence suspended.
·6 May 2002 Mr Dinh was convicted of failing to comply with a community based order, and resentenced on his convictions of 6 February 2001 (failing to answer bail, theft of a motor vehicle, possession of heroin and unlicensed driving) and fined and sentenced to two months imprisonment, sentence suspended.
·22 October 2002 Mr Dinh was convicted of breaching a suspended sentence order (for which his suspended sentence of two months was reinstated), trafficking heroin and possessing heroin for which he was sentenced to three months imprisonment, to be served concurrently.
·2 December 2002 Mr Dinh was convicted of breaching a suspended sentence order for which his suspended sentence of six months was reinstated, to be served concurrently.
·6 February 2004 Mr Dinh was convicted of attempting to traffick heroin and possessing property being the proceeds of crime (four charges), for which he was sentenced to four months imprisonment.
·28 February 2005 Mr Dinh was convicted of using heroin, trafficking heroin and failing to answer bail (two charges), for which he was sentenced to six months imprisonment.
·5 February 2007 Mr Dinh was convicted of attempting to traffick heroin, theft from a shop, failing to answer bail and stating a false name when requested, for which he was fined and sentenced to two months imprisonment, sentence suspended.
·4 September 2007 Mr Dinh was convicted of trafficking a drug of dependence, possessing heroin and dealing in property suspected to be the proceeds of crime, for which he was sentenced to ten months imprisonment (with the sentence to be served by way of a drug treatment order[14]).
·24 June 2008 Mr Dinh was convicted of breaching his drug treatment order (so that the order was cancelled and he was required to serve the unexpired term of his imprisonment), trafficking heroin, possession of heroin, dealing with property suspected to be the proceeds of crime and possession of something in gaol without authority, for which he was fined and sentenced to 20 months imprisonment.
·19 June 2018 Mr Dinh was convicted of possessing heroin, possessing methylamphetamine (two charges) and stalking another person, for which he was sentenced to one month’s imprisonment and two years imprisonment, to be served concurrently.
·11 October 2019 two charges against Mr Dinh of contravening an interim personal safety intervention order were proven and dismissed under s76 of the Sentencing Act 1991 (Vic).[15]
[14] A drug treatment order under the Sentencing Act 1991 (Vic) consists of two parts, a custodial part and a treatment and supervision part (s18ZC). The order in the case of Mr Dinh could not have been made unless he had agreed in writing to comply with the treatment and supervision part of the order (s18Z(3)).
[15] That section empowers a court to dismiss a charge without recording a conviction “on being satisfied that a person is guilty”.
The circumstances of the stalking offence of which Mr Dinh was convicted on 19 June 2018 are described in the sentencing remarks of His Honour Judge Vandersteen (a magistrate of the Victorian Magistrates Court).[16]
[16] G31.
Over two weeks in February 2018 Mr Dinh (then 35 years old) stalked a 17 year old school girl. According to His Honour, the stalking was persistent and intense.[17] It involved him following her to school and to work, going to her school, going to her home, remaining at her home, taking photographs of her and telephoning her.[18]
[17] G41.
[18] G43.
Does the Applicant Pass the Character Test?
I am not satisfied that Mr Dinh passes the character test.
Under s501 of the Act a person does not pass the character test if, amongst other things, the person has a substantial criminal record.[19] Mr Dinh has such a record. He has been sentenced to a term of imprisonment of 12 months or more.[20]
[19] S501(6)(a) Act.
[20] S501(7)(c) Act.
In particular and as I outlined earlier, on 19 June 2018 Mr Dinh was sentenced to an aggregate term of imprisonment of two years and one month with respect to charges of possessing heroin, possessing methylamphetamine (two charges) and stalking another person.
Is there another reason why cancellation decision should be revoked?
Put briefly, on Mr Dinh’s behalf, while it is accepted that he does not pass the character test, it is contended that “his substantial ties to the community, his general reform and his employability all count in his favour in deciding that there is another reason why the mandatory cancellation” of his visa should be revoked.[21] I do not agree.
[21] ASFIC.
Indeed, I am not satisfied that there is another reason why the decision to cancel Mr Dinh’s visa should be revoked.
In arriving at that state of non-satisfaction I have sought to (as I am required by s499 of the Act to) comply with a written direction of the Respondent found in a document entitled “Direction No 79 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).
Compliance with Direction 79 requires that I consider whether to revoke the visa cancellation decision “given the specific circumstances of the case.”[22]
[22] Direction 79,cl6.1(3) and 13(1).
It also requires that I take certain considerations (where relevant)[23] into account, informed by certain principles.[24]
[23] Direction 79,cl8(1).
[24] Direction 79, cl7(1).
Those principles are:[25]
[25] Direction 79, cl6.3.
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
These principles not only inform the process by which I take the relevant considerations into account, they also provide a framework within which I should approach the Tribunal’s task in this proceeding.[26]
[26] Direction 79, cl6.2(3).
I turn now to the considerations which I am required by Direction 79 to take into account.
CONSIDERATIONS: OVERVIEW
The relevant considerations are those set out in Part C of Direction 79.
Part C is divided into primary considerations and other considerations.
The primary considerations are protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia, and expectations of the Australian community.[27]
[27] Direction 79, cl13(2).
The other considerations include (but are not limited to) international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims, and extent of impediments if removed.[28]
[28] Direction 79, cl14(1).
The primary considerations are generally to be given more weight than the other considerations[29] and one or more primary considerations may outweigh other primary considerations.[30]
[29] Direction 79, cl8(4).
[30] Direction 79, cl8(5).
Protection of the Australian community
The protection of the Australian community from criminal or other serious conduct consideration is one that requires that regard be had to the Australian government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens.[31]
[31] Direction 79, cl13.1(1).
Taking this primary consideration into account requires that regard be also had to two subsidiary considerations being, in the circumstances, the nature and seriousness of Mr Dinh’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct.[32]
[32] Direction 79, cl13.1(2).
Nature and seriousness of conduct
Mr Dinh’s conduct to date has been serious.
While the seriousness of his conduct is accepted, on his behalf it is submitted that it has been at the mid to lower level range of seriousness, essentially because it did not involve physical violence or a threat to the safety of others.[33]
[33] G86.
I reject that submission. In terms of gradations of seriousness, Mr Dinh’s conduct ought not be considered to have been at the lower level.
While physical violence was not involved, as I see it, Mr Dinh’s conduct has nevertheless been violent.
Moreover, quite apart from his stalking conduct and irrespective of the issue of violence, I consider other criminal conduct of Mr Dinh to have been very serious. I refer here, in particular, to his conduct relating to the use and, more especially, trafficking of illicit drugs of dependence.
I have so characterised Mr Dinh’s conduct taking into account the factors which Direction 79 requires be taken into account in considering the nature and seriousness of a person’s conduct.
Those factors include:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.[34]
[34] Direction 79 cl13.1.1(1)(a).
In Mr Dinh’s case, he has been convicted of stalking a 17 year old girl.
As was submitted on behalf of Mr Dinh, his conduct in relation to the girl did not involve physical violence but, as I see it, it did involve violence.
The concept of “violence” is not one that appears to have been the subject of exhaustive definition.[35] Nevertheless, as understood both at common law and in the context of its etymology, it encompasses not only actual physical force but also “threats or menaces to induce fear and terror or to intimidate.” [36] Hence, an act of violence includes “…acts of intimidation and menaces as well as physical force.”[37]
[35] R v Butcher [1986] VR 43 at [48].
[36] Ibid at [52]; see also Breeze v R (1999) 106 A Crim R 441 at [19] and R v Galas (2007) 18 VR 205 at [31]-[32]. In Attorney-General (Qld) v Phineasa (2013) 221 A Crim R 200 at [38] it was suggested that violence, in a particular context, required force significantly greater than mere physical contact but this suggestion was couched so as to exclude “for present purposes threats and intimidation”.
[37] Director of Public Prosecutions v Perry (2016) 50 VR 686 at [40].
Here, Mr Dinh’s conduct would appear to have been intimidatory and, hence, violent. According to His Honour Judge Vandersteen, Mr Dinh’s stalking “…would be in the very rare (indistinct) of stalking cases in which you would have to have a real concern for [the victim’s] safety.”[38] It was clearly thought to warrant the making against Mr Dinh of a personal safety intervention order[39] that prohibited him contacting the victim of his stalking[40] (an order which he would appear to have contravened, albeit that details of the contravention are not before the Tribunal).
[38] G38.
[39] Personal Safety Intervention Orders Act 2010 (Vic).
[40] G45.
Put shortly, Mr Dinh’s offending involved (or at least included) violence and included a threat to the victim’s safety. As such, it is required by Direction 79 to be, and is, viewed very seriously.
As so viewed Mr Dinh’s conduct falls within, at least, the second and third general principles that form part of the framework within which I should, under Direction 79, approach my task.
The first is of the Australian community and it is that the Australian government should cancel the visa of a non-citizen if the non-citizen commits serious crimes. The second is of non-citizens such as Mr Dinh. It is that they should generally expect to forfeit the privilege of staying in Australia if they commit a serious crime of a violent nature, “particularly against women”.
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.[41]
[41] Direction 79 cl13.1.1(1)(b).
Even if I were to be incorrect in characterising Mr Dinh’s stalking as a violent crime, it was a crime of a violent nature given the intimidation involved. The fact that it was committed against a child reinforces the need to view it very seriously.
(c)The principle that 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, are serious.[42]
[42] Direction 79 cl13.1.1(1)(c).
In relation to this factor, Mr Dinh submits that none of his offending has been against vulnerable people. I do not agree.
First, the victim of his stalking was a vulnerable member of the community. She was a minor. Moreover, Mr Dinh says he knew she was a minor.
Second, as I see it, trafficking drugs of dependence to those with an addiction preys on the vulnerable.
While Mr Dinh maintains that he only trafficked drugs to support his own addiction, an awareness of his own dependence on drugs ought to have made him very much alive to the difficulties (and potential for difficulty) faced by those to whom he supplied his odious product. In order to satisfy his own needs, he was prepared to, and did, put others in jeopardy.
Mr Dinh contends that he was just trying to survive and contrasts his position with that of those with a good education and job.[43] Insofar as it is being suggested that his conduct was, at least to an extent, excusable given the position Mr Dinh found himself in, I reject it. I accept that Mr Dinh’s upbringing was not easy. Nevertheless, it seems to me that the position Mr Dinh is and was in is one largely of his own making.
[43] Personal statement of 16 July 2020.
Along similar lines, it was contended that Mr Dinh “acquired” his criminal behaviour while living in Australia so that the community should now assist his rehabilitation.[44] Again, insofar as it is being suggested that the Australian community is responsible for Mr Dinh’s conduct and the position he now finds himself in, I reject it.
[44] A SFIC [24].
First, such a suggestion pays scant regard to the opportunities for rehabilitation Mr Dinh has already been afforded (which I will mention in more detail later). Second, there is nothing in the material before me suggestive of some communal conduct or omission indicative of a shared responsibility for Mr Dinh’s choices and the consequences of them. What the Australian community did was afford Mr Dinh the privilege of coming to and remaining in Australia. Having been afforded that privilege, Mr Dinh assumed a personal responsibility for what he did with it. The assumption of such a personal responsibility is inherent in the general principle that those who commit serious crimes ought expect to forfeit that privilege.
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes.[45]
[45] Direction 79 cl13.1.1(1)(d).
In terms of this factor, the sentence imposed for a crime can provide objective guidance as to the seriousness of the conduct involved (such as might be the case where a conviction is not accompanied by a sentence of imprisonment or fine[46]).
[46] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [202].
Here, the guidance provided by the sentences of imprisonment imposed on Mr Dinh is to the effect that his offending was serious. This is because the imposition of any term of imprisonment reflects a view that the offence concerned was serious; “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….”,[47] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[48]
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.[49]
[47] Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [34].
[48] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
[49] Direction 79 cl13.1.1(1)(e).
As revealed by his convictions, Mr Dinh’s offending was sustained and repetitive for around eight years. This was followed by a hiatus of around eight years until his most recent convictions in 2018 and 2019.
The hiatus reflected in Mr Dinh’s convictions, however, is not an accurate reflection of his offending.
While in terms of convictions Mr Dinh’s offending went into remission for a lengthy period, in fact, his offending was continuous.
In a psychiatric report of 15 June 2018 Mr Dinh is said to have stated over the course of three interviews in May 2018 that (with my emphasis):[50]
“…he had never been employed. He had informally worked with his father as a handyman many years back. After leaving home, he spent much of his 20s in and out of prisons and in the company of drug abusing friends. He supported himself partly by dealing drugs, stealing and partly with Centrelink allowance.
…apart from the two months he had been grieving the death of his partner,
he has never truly abstained from using opiates.
…
Mr. Dinh had a period free of incarceration in the community between 2008 until about 3 months back. He told me that he had been in a relationship until 2009 and following this had received intermittent support from his family. Mr. Dinh stated that he continued to use illicit drugs but was not trafficking these.”
[50] G90.
In his statement of 16 July 2020 Mr Dinh referred to smoking heroin and methylamphetamine, apparently as a result of being bored after ceasing work for his father in 2016.
In the course of this proceeding, Mr Dinh informed the Tribunal that in the last ten years and prior to his incarceration, he had continued to use illicit drugs, albeit intermittently when compared to his previous daily use.[51]
[51] I note that Mr Dinh’s statement to the Tribunal that he had continued to use illicit drugs appears to run counter to the comment in his personal statement of 16 July 2020 to the effect that he did not use heroin for an extensive period from 2010 to 2016, albeit that I note that the comment refers only to heroin, not methylamphetamine.
Accordingly, overall, Mr Dinh’s offending has been sustained and repetitive.
No trend of increasing seriousness of offending is, however, revealed. Mr Dinh’s stalking offence is very serious but, of itself, reveals no trend. In terms of offences concerning illicit drugs, the absence of any recent conviction for trafficking might suggest a decrease in the level of seriousness (albeit I note the admission reflected in the psychiatric report about how Mr Dinh supported himself absent employment [“dealing drugs, stealing”]).
While no trend of increasing seriousness is revealed, Mr Dinh’s offending does suggest a fundamental lack of respect for Australia’s law enforcement framework. In this regard, I note Mr Dinh has been convicted twice for resisting police, has failed to answer bail on eight occasions, has breached community based orders twice, has failed to observe the conditions of a suspended sentence twice, has breached a drug treatment order and has contravened an interim personal safety intervention order. This record suggests that Mr Dinh is a person prepared to let his own impulses override any concern he may have with respect to commitments binding on him and imposed in the context of Australia’s law enforcement framework.
(f)The cumulative effect of repeated offending.[52]
[52] Direction 79 cl13.1.1(1)(f).
On behalf of the Respondent it was submitted that the cumulative effect of Mr Dinh’s offending in relation to illicit drugs was significant and deleterious for the Australian community.
I accept that submission.
I refer, in particular, to the adverse impact which illicit drug use has on users’ physical and mental health and to a variety of societal harms caused by such use, including increased levels of offending (both violent and property related) and the need to devote scarce public resources (such as police and health care resources) to address such use and its consequences.
In trafficking (and, to a lesser extent, using) drugs of dependence for a number of years Mr Dinh has exacerbated these impacts and harms. Further, any opportunity he has had so far to make a positive societal contribution would appear to have been squandered in the context of his persistent drug use.
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending.[53]
[53] Direction 79 cl13.1.1(1)(g).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
(h)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).[54]
[54] Direction 79 cl 13.1.1(1)(h).
By letter dated 1 August 2008[55] Mr Dinh was warned that:
…any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501 (6), could result in fresh consideration of the cancellation of your visa. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.
[55] G66. Receipt was acknowledged by Mr Dinh on 10 August 2008: G71.
As indicated earlier there was a significant hiatus in Mr Dinh’s offending after 2008, at least in terms of his convictions. Also as mentioned, however, Mr Dinh did, however, continue to offend despite the warning as reflected in both the admissions to which I referred earlier and his 2018 and 2019 convictions.
Mr Dinh was prepared to continue to offend despite knowing that it risked his removal from Australia. This does not induce confidence that Mr Dinh will abstain from offending if allowed to remain in Australia.
(i)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act.[56]
[56] Direction 79 cl 13.1.1(1)(i).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
The risk to the Australian community
I turn now to the second matter to which consideration ought be given in the context of the protection of the Australian community consideration. As I mentioned earlier, this is the risk to the community should Mr Dinh commit further offences or engage in other serious conduct.
In considering that risk I am required by Direction 79 to have regard, cumulatively, to the nature of harm to individuals or the Australian community should Mr Dinh engage in such conduct and the likelihood of him doing so (taking into account available information and evidence on the risk of the non-citizen re-offending).[57]
[57] Direction 79 cl13.1.2(1).
As to the nature of harm to individuals or the Australian community should Mr Dinh commit further offences or engage in other serious conduct, I refer to the comments I made earlier in the context of considering the cumulative effect of his repeated offending.
The focus of those earlier comments was on Mr Dinh’s offending in relation to illicit drugs. Clearly if Mr Dinh was to again engage in stalking the victim of that offending (and those associated with her, such as her family) might well become rightly concerned as to her safety and greatly inconvenienced by steps taken to address those concerns. In addition, the community might well be inconvenienced due to the need for policing inherent in seeking to guard against offending of that type.
As to the likelihood of Mr Dinh committing further offences or engaging in other serious conduct, on the material before me I not satisfied that it is unlikely. Instead, I am satisfied that the risk of him re-offending is significant.
I address the risk of Mr Dinh re-offending in relation to the two types of offending in which he has engaged in the past; one relating to illicit drugs and the other relating to stalking.
Risk of re-offending – drugs
On behalf of Mr Dinh, it is submitted that there is little evidence of there being a risk of re-offending “if community support is available to him”[58] or if given a chance to receive treatment.[59]
[58] A SFIC [22]; G81.
[59] G85.
I disagree. The evidence of Mr Dinh’s history suggests that there is a significant risk of him again indulging in illicit drugs were he to be released into the community. Moreover, the propositions relied upon in support of the contention that there is little risk of Mr Dinh re-offending are largely devoid of substance.
In terms of Mr Dinh’s history, it reveals long term, use of illicit drugs, a use which Mr Dinh sustained despite:
·Its having caused ructions in his familial relationships (his father having disowned Mr Dinh in the early 2000s apparently because of Mr Dinh’s continued use of drugs).
·The girl Mr Dinh said he would have married having (according to Mr Dinh) asked him not to contact her while he continued to use drugs.
·The warning Mr Dinh received in 2008 about the risk to his capacity to remain in Australia should he continue to offend.
·His repeatedly unsuccessful engagement with a variety of drug rehabilitation programs.
It is said that Mr Dinh is remorseful about his conduct, suggesting that he has insight into the causal connection between the situation he finds himself in and his use of illicit drugs.
I do not find, however, that Mr Dinh displays any significant level of remorse or insight concerning his use of illicit drugs.
Mr Dinh says he will “try” and stay off drugs if allowed to remain in Australia. This suggests a preference that he be able to continue to use drugs but an acceptance of the need to try and desist in order to avoid removal from Australia. This suggestion is reinforced when regard is had to:
·What Mr Dinh apparently told the authors of a June 2018 psychiatric report.[60] He is there reported as having expressed the view that his substance use was not a problem; it was a way in which he coped with boredom.
·Concerns expressed by His Honour Judge Vandersteen “…that Mr Dinh does not have sufficient insight into his long-term drug addiction and this leaves me with considerable doubt as to his prospects of rehabilitation if he is again returned to the community. Mr Dinh’s statement that he is 'trying to get treatment' for his drug dependency and has been referred for an alcohol and other drugs course. I note that he has been unable to benefit from a Drug Treatment Order in the past and find his rehabilitative efforts to be minimal.”
[60] G89.
His Honour’s characterisation in 2018 of Mr Dinh’s rehabilitative efforts as minimal reflect the view I take of Mr Dinh’s current efforts in this regard.
As I have said, Mr Dinh has suggested that he will try to cease using drugs if he is allowed to remain in Australia. Apparently, it is only if he is so allowed that he will try to get treatment.[61] “If the Australian Government is willing to give me one last chance, I will undergo substance abuse counselling and drug rehabilitation program…”.[62]
[61] G62.
[62] Statement of 16 July 2020.
What Mr Dinh is referring to is unclear. No particular program has been identified. While it would appear that Mr Dinh has been on a methadone program since 2004, his evidence at the hearing was to the effect that, once released into the community, he would try and stop using methadone.
Even if Mr Dinh were to engage with a substance abuse program his history is not such as to inspire confidence as to its success.
As I mentioned earlier, in 2007 Mr Dinh was sentenced to a term of imprisonment to be served by way of a drug treatment order. Such an order would have required that Mr Dinh have agreed in writing to comply with the treatment and supervision part of the order. In 2008 Mr Dinh was found to have contravened the order.
In a psychiatrist’s report of June 2018[63] elements of his history were described as follows:
Mr. Dinh attended drug rehabilitation programs as part of his community corrections order at various times but did not continue with these due to easy availability of drugs, persistent cues including boredom and strong peer pressure.
…
He has been on a number of Community Correction Orders between the years 2000-2008 and a Drug Treatment Order in 2007, all of which he had breached. He described these breaches to be directly related to his drug habits.
[63] G94.
According to Mr Dinh, with financial support from his father, he spent three months in Vietnam in 2015 in an effort to address his substance abuse problems. That effort did not involve him enrolling in any specific program but, rather, simply living in Vietnam and endeavouring to abstain from all drugs, including methadone. It was unsuccessful.
Mr Dinh gave evidence to the effect that he has been referred to an alcohol and other drugs course. No evidence of him taking up the reference and attending the course was given.
Mr Dinh says efforts to address his substance abuse issues are now more likely to be successful because he is more mature and has been in prison or detention for a longer period of time than in the past (and, implicitly, free of illicit drugs for a longer period than in the past).
When indulging in illicit drugs in 2018 Mr Dinh was 35 or 36 years of age. I am not satisfied that another two years of age would render Mr Dinh significantly more mature.
As for being free of illicit drugs while incarcerated for a lengthy period, again, I am not satisfied that this factor is such as to ameliorate to any material extent what I see as being Mr Dinh’s significant risk of re-offending. This is in a context where Mr Dinh does not display any significant level of remorse or insight into his substance abuse problems, where his stated intention is to try and cease taking methadone once released into the community and where I harbour doubts as to the availability of the support which Mr Dinh contends he will receive once released into the community.
As to that support, it is contended that, once released into the community, Mr Dinh will be able to obtain employment as a handyman with his father or, if not with him, then with one of his uncles. In this regard, it is said that Mr Dinh worked as a handyman for his father for “an extensive period”[64] in the 2010 to 2016 period. It was said that, in the relevant period, he worked for cash, when there was work for him to do.
[64] Statement of 16 July 2020.
As I have said, I harbour doubts about Mr Dinh’s evidence concerning the work he was said to have done for his father, at least in terms of it being extensive, and about the willingness of his father (and other relatives) to hire him on release into the community.
There is no material before me corroborating either his work history or the preparedness of others to employ him.
On the contrary, on the material before me:
·Mr Dinh may well be considered to have had no history of employment. I note that when asked to outline his employment history in a form in December 2018 Mr Dinh’s response was “NA”.[65]
·In the psychiatric report of June 2018 Mr Dinh is said to have “said that he had never been employed. He had informally worked with his father as a handyman many years back…He supported himself partly by dealing drugs, stealing and partly with Centrelink allowance.”[66]
·It is clear that for at least three months of the relevant period Mr Dinh was not in Australia and, as such, could not have been working for his father.
·It is clear that Mr Dinh’s relationship with his family is not close. At some stages Mr Dinh’s father is said to have disowned him. According to Mr Dinh, he stopped working for his father and took up smoking illicit drugs because his father “talked trash” to him.[67] Since at least early 2018 Mr Dinh has had no contact with his father or any of his other relatives (other than telephone contact with his younger sister).
Risk of re-offending – stalking
[65] G63.
[66] G93.
[67] Statement of 16 July 2020.
I turn now to the risk that Mr Dinh will again engage in offending in the nature of stalking.
While difficult to assess the extent of the risk of Mr Dinh again engaging in such offending, the misshapen views he has about the circumstances of his stalking conduct are such as to raise significant concerns about that risk, concerns apparently shared not only by His Honour Judge Vandersteen but also by Mr Dinh’s own counsel.[68]
[68] See the transcript of the 19 June 2018 sentencing hearing at which Mr Dinh was convicted of stalking: G31,32, 33,37,38, 41,45.
Those concerns appeared principally to arise as a result of Mr Dinh expressing and maintaining views as to the nature of his relationship with the victim of his stalking which differed markedly from the facts as found by His Honour.
In a psychiatric report of June 2018, Mr Dinh is said to have expressed fixed beliefs that the victim had been attracted to him at the time of the offending behaviour and to have indicated the possibility that he may continue to pursue this relationship in the future.[69] Mr Dinh asserted that he interacted well with the victim, driving her to college and picking her up from work.[70] Similar claims were made in the context of Mr Dinh’s 19 June 2018 hearing. Mr Dinh apparently thought that he knew the victim so well that he would have married her, had she been 18.
[69] G95.
[70] Statement of 16 July 2020.
According to His Honour Judge Vandersteen Mr Dinh’s stalking involved a lady “that appears to be unknown to you.”[71]
[71] G43.
This finding that Mr Dinh was apparently unknown to the victim of his stalking despite his assertion that he had interacted well with her and was, indeed, in a relationship with her was one necessary to,[72] or at least an important part of the process leading up to,[73] the sentence arrived at by His Honour. It was not a finding as to a fact “surrounding, but not essential to, those necessarily supporting the conviction and sentence.”[74]
[72] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [194] (HZCP).
[73] XRXL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 813 [17].
[74] Mayes v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1036 at [79].
As such, I am not at liberty to go behind it by entertaining evidence by which Mr Dinh might have sought to impugn that finding.[75] According to Colvin J in HZCP “…a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as ‘another reason’ why the original decision to cancel should be revoked.”[76]
[75] HZCP at [79] per McKerracher J.
[76] HZCP at [195].
Accordingly, I do not accept Mr Dinh’s evidence at the hearing of this proceeding that he had been in a romantic relationship with the victim.[77] Indeed, the fact that Mr Dinh continues to maintain that he had such a relationship with the victim is suggestive of a lack of insight into his offending, a lack which qualifies his expressions of deep regret for his conduct and, as a consequence, exacerbates his risk of re-offending.[78]
[77] I note that inconsistently with His Honour’s finding, in the psychiatric report of June 2018 it is suggested that in a statement provided by the victim there is an acknowledgement that she knew Mr Dinh.
[78] See the similar conclusion expressed by His Honour Judge Vandersteen at G34, G37; see also Mr Dinh’s counsel at his sentencing hearing in June 2018 at G33 stating “we haven’t come to a point of significant insight” such that he accepted at G41 that Mr Dinh’s risk of offending was “very significant”.
That this is so would be the case even if I were to disregard the court’s finding that Mr Dinh was apparently unknown to the victim and, instead, accept the suggestion in the psychiatric report of June 2018 that the victim knew Mr Dinh. This is because the nature of the relationship said to have been alluded to by the victim was not such as to justify the views expressed by Mr Dinh. She had spoken to Mr Dinh “a couple of times but that she did not know the accused well enough to categorise him as a friend.”[79] Hardly, the hallmark of a romantic relationship, let alone one that warranted marriage plans.
[79] G95.
As it was at Mr Dinh’s sentencing hearing in 2018, Mr Dinh’s failure to accept the true nature of the “relationship” he had with the victim raises concerns about his conduct should he be released into the community and, more specifically, the risk that he might re-offend. Those concerns are exacerbated given:
·The failure to have undertaken the comprehensive psychiatric assessment which, in the June 2018 psychiatric report, was suggested would be required were Mr Dinh then to have been given a non-custodial sentence.[80]
·Mr Dinh’s conviction in 2019 for having contravened an interim personal safety intervention order. The circumstances of the contravention were not before the Tribunal. The order was, however, one that apparently precluded Mr Dinh contacting the victim of his stalking. Mr Dinh stated that he was not aware of the order when he contacted the victim. He had been living in a car outside the victim’s residence and trying to get the victim to contact his sister so that his sister could arrange some accommodation. As the Respondent pointed out, however, Mr Dinh’s lack of awareness of the order is difficult to reconcile with the terms of s100 of the Personal Safety Intervention Orders Act 2010 (Vic). Under that section it can only be an offence to contravene an order if the person against whom the order is made has either been served with a copy of it or had been given an explanation of it.
[80] G95
Conclusion
I have found that Mr Dinh has committed serious crimes and that his offending has been repetitive, sustained and indicative of a lack of respect for Australia’s law enforcement framework and a disregard of commitments binding him and imposed in the context of that framework.
I have also found that there is a significant risk of his re-offending.
The result of this is that the protection of the Australian community consideration weighs heavily against me being satisfied that there is another reason to revoke the decision to cancel Mr Dinh’s visa.
The best interests of minor children in Australia
The second primary consideration which I am required by Direction 79 to take into account is the best interests of minor children in Australia. I am required to determine in relation to each relevant child whether revocation of the visa cancellation decision is in his or her best interests.
In this proceeding, the Tribunal is not being asked to take the best interests of any particular child into account.
While it would appear that an uncle or uncles of Mr Dinh have children or grandchildren who are minors, Mr Dinh does not claim to have a close relationship with any of them and does not seek to have their interests taken into account in the context of this consideration.
As such, the consideration concerning the best interests of minor children in Australia is neutral, in the sense that it neither weighs in favour of nor against me being satisfied that there is another reason to revoke the decision to cancel Mr Dinh’s visa.
Expectations of the Australian community
The third primary consideration which I am required by Direction 79 to take into account is “expectations of the Australian community”.
In Direction 79 it is said that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of the non-citizen.
Essentially, and having regard (in particular) to what are said to be community expectations in certain of the framework principles to which I previously referred, this reflects “a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused.”[81]
[81] FYBR v Minister for Home Affairs (2019) 374 ALR 601 (FYBR) at [75]. See also at [96] where it is suggested that the expectation is consistent with the framework principle that the “Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere”.
In the result,
“…community expectations are simply, and informally, expressed as follows: ‘If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.… It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances.”[82]
[82] FYBR at [101]-[102]
Direction 79 does not leave determination of the community’s expectations up to the idiosyncratic tastes of the relevant decision-maker. The enquiry which this consideration engenders does not concern what the Australian community expects in fact but, rather, concerns what the government deems the community’s expectations to be. The content of the deemed expectation is to be discerned by construing the relevant clause of Direction 79 (cl 13.3) itself.[83]
[83] FYBR at [68].
As Mr Dinh has engaged in what is regarded in Direction 79 as serious criminal offending, the expectation which the Australian community is deemed to have in the circumstances is that the decision to cancel his visa not be revoked. Hence, this consideration weighs against me being satisfied that there is another reason to revoke the decision to cancel Mr Dinh’s visa.
As recognised in FYBR, however, the weight to be attached to this consideration may vary, depending on what is appropriate in the circumstances. As such, that weight might be said to “undulate significantly according to the context of the non-citizen’s offending and the broader landscape of the non-citizen’s general conduct in Australia.”[84]
[84] Tuimalatu and Minister for Home Affairs (Migration) [2019] AATA 719 at [108].
Here, as was stressed on his behalf, Mr Dinh has resided in Australia for most of his life, having arrived here aged 13. This circumstance brings to mind at least two of the general principles which inform the way in which I should take into the expectations of the Australian community consideration (along with the other considerations identified in Direction 79). Pursuant to those principles:
·Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who, like Mr Dinh, has lived in the Australian community for most of their life, or from a very young age.
·The length of time a non-citizen has been making a positive contribution to the Australian community…are considerations in the context of determining whether that non-citizen’s visa should be cancelled.
As I see it the first general principle does have application in the circumstances but the effect of its application is somewhat offset by what I see as Mr Dinh’s failure to have made a positive contribution to the community despite his lengthy residence in Australia (noting, for instance, that he was first convicted of offences in Australia relatively shortly after his arrival [around 3.5 years]).
Conclusion
The consideration concerning the expectations of the Australian community weighs against a finding that there is another reason to revoke the decision to cancel Mr Dinh’s visa and, in the circumstances and despite the ameliorating effect of his long term presence in Australia, it does so to a significant extent.
OTHER CONSIDERATIONS
The considerations which I am required by Direction 79 to take into account are, as mentioned earlier, divided into primary and other considerations.
Having addressed the primary considerations I turn now to the other considerations which, paraphrased, entail a consideration of international non-refoulement obligations; strength, nature and duration of Mr Dinh’s ties to Australia; the impact of non-revocation of Mr Dinh’s visa on Australian business interests; the impact of non-revocation of Mr Dinh’s visa on victims and the extent of impediments if Mr Dinh is removed from Australia. This list is not exhaustive, and the considerations need only be taken into account where relevant.
International non-refoulement obligations
While Mr Dinh does submit that he would face various impediments were he to return to Vietnam, he has expressed no concerns or fears about what would happen to him were he to do so of a type that would engage non-refoulement obligations. For example, it is not contended that he would face on return to Vietnam any risk for a “convention reason” (reasons of race, religion, nationality, membership of a particular social group or political opinion).[85]
[85] Article 1A(2) of the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954).
As such, this consideration does not weigh against or in favour of a conclusion that there is another reason to revoke the decision to cancel Mr Dinh’s visa.
Strength, nature and duration of ties
In the context of this consideration Direction 79 requires that regard be had to two further considerations.
(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.
I have, to an extent, addressed issues raised by this consideration in the context of my consideration of the expectations of the Australian community.
Mr Dinh has spent most of his life in Australia, having arrived as a child aged 13. He did, however, commence offending relatively soon thereafter and, as I have said, on the material before me I do not see that he has made a positive contribution to the Australian community.
In terms of an economic contribution, I outlined earlier the doubts I harboured as to accuracy of the very limited evidence before me as to Mr Dinh’s work history (in which he suggested that he had worked for his father for an extensive period in the period 2010 to 2016). While there is no material before me corroborating his work history there is material suggestive of him never having been employed, at least to any material extent. In this regard, I again note that:
·When asked to outline his employment history in a form in December 2018 Mr Dinh’s response was “NA”.[86]
·In the psychiatric report of June 2018, it is suggested that Mr Dinh had supported himself by dealing drugs, stealing and social welfare and that it had been “many years back” since he had worked for his father as a handyman.[87]
[86] G63.
[87] G93.
In terms of social contribution, there is nothing in the material before me suggestive of any positive contribution whatsoever. Indeed, from a social perspective and given his offending history, his net social contribution to the Australian community would appear to be negative.
I note that in the personal circumstances form completed by Mr Dinh in December 2018 he left blank that aspect of the form asking him to list his positive contributions to Australia.[88]
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
[88] G63.
Mr Dinh’s family links in Australia appear to be extensive.[89]
[89] G61, 86.
His father and step-mother live in Australia as well as a number of siblings (including step-siblings). In addition, several uncles along with their immediate families also live in Australia. Conspicuous by its absence, however, is material from any of them (or, indeed, from any friends) supportive of Mr Dinh’s application.
Mr Dinh says he has been too ashamed to approach his family to tell them of his predicament and ask for assistance. As I see it, however, this cannot fully explain his family’s apparent lack of support.
Mr Dinh has been in prison or detention since early 2018. He has had no visitors and since then has only been in contact with one of his siblings. It is difficult to see how his family members would have remained unaware of the situation he is in unless, pre-incarceration, there had already been a rift in the family such that there was little to no contact.
Given this absence of contact for at least a couple of years, non-revocation of the decision to cancel Mr Dinh’s visa is unlikely to have a materially adverse effect on his family members, with the possible exception of the one sibling with whom Mr Dinh remains in contact.
I note that when asked in the personal circumstances form completed by Mr Dinh in December 2018 to identify hardship to members of the Australian community were he to be removed from Australia his response was “none”.[90]
[90] G64.
Overall and given the potential for reconciliation with his family were he to remain in Australia, I find that the strength, nature and duration of Mr Dinh’s ties to Australia are such as to weigh in favour of a conclusion that there is another reason to revoke the decision to cancel Mr Dinh’s visa, but only slightly so.
Impact on Australian business interests
Direction 79 requires that I consider the impact on Australian business interests if Mr Dinh’s visa cancellation decision is not revoked but noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Given the absence of material before me of relevance to this consideration it neither weighs in favour nor against a conclusion that there is another reason to revoke the decision to cancel Mr Dinh’s visa.
Impact on victims
Direction 79 requires that I consider the impact of a decision not to revoke the decision to cancel Mr Dinh’s visa on members of the Australian community, including victims of his criminal behaviour, and the family members of the victim or victims where that information is available and Mr Dinh has been afforded procedural fairness.
Given the absence of material before me of relevance to this consideration it neither weighs in favour nor against a conclusion that there is another reason to revoke the decision to cancel Mr Dinh’s visa.
Extent of impediments if removed
In the circumstances, Direction 79 requires that I consider the extent of any impediments that Mr Dinh may face if removed from Australia to Vietnam, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Vietnam), taking into account his age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to him in Vietnam.
While there might be (and, I suspect, would be) some initial difficulties faced by Mr Dinh in establishing himself and maintaining basic living standards in Vietnam, I note that:
·He is unlikely to encounter language or cultural barriers. He lived in Vietnam for the early part of his life and reacquainted himself with the country by living there again for three months in 2015. Indeed, in a psychiatric report of June 2018 Mr Dinh is said to have described his overall experience of living in his home country as "Vietnam is more fun. With money you can live there.”[91]
·Apart from the support available to him as a citizen of Vietnam he is unlikely to garner from Vietnam any family, social or economic support. While his mother lives in Vietnam Mr Dinh has had no contact with her for some time having, apparently, been raised by his grandmother (who has since passed away) when he lived in Vietnam. His family members in Australia could still provide economic support, however, if they were of a mind to.
·While he might lack support (at least support sourced from Vietnam) Mr Dinh is of working age. In this regard, a DFAT Country Information Report of December 2019 concerning Vietnam cited a World Bank 2018 report to the effect that unemployment rates in Vietnam were very low by global standards.[92]
·Mr Dinh is in good health. [93] While he is currently being treated with methadone, Mr Dinh expressed a desire to cease using it once freed from incarceration. In any event, methadone treatment would appear to be available in Vietnam[94] at a cost that apparently represents no more than around 5% to 10% of the minimum salary level.[95]
[91] G92.
[92] SG397.
[93] G88.
[94] G456: Le et al, ‘Preferences for methadone clinics among drug users in Vietnam: a comparison between public and private models’ Harm Reduction Journal (2020) 17:1; G436: Johns et al, ‘Association Between User Fees and Dropout from Methadone Maintenance Therapy: Results of a Cohort Study in Vietnam’ (2018) 4(2) Health Systems & Reform 101–113.
[95] SG439.
I accept that Mr Dinh may suffer emotional hardship by reason of being precluded from being physically proximate to his Australian resident family and support network (such as it is) but note that his relationship with his family is, and has been for quite some time, not one that involves him having significant contact.
I find that this consideration as to impediments to be faced by Mr Dinh on removal to Vietnam weighs in favour of a conclusion that there is another reason to revoke the decision to cancel his visa, but not significantly.
CONCLUSION AS TO OTHER REASON FOR REVOCATION
In considering whether there is another reason for revocation of the decision to cancel Mr Dinh’s visa, my conclusions in relation the considerations to which Direction 79 requires that I have regard do not point in a uniform direction.
In particular, in the circumstances of this matter:
·The primary considerations as to protection of the Australian community from criminal or other serious conduct and as to expectations of the Australian community offer support for concluding that there is not another reason for revocation of the decision to cancel Mr Dinh’s visa.
·Certain of the “other considerations” (in particular, those relating to the strength, nature and duration of Mr Dinh’s ties to Australia and the extent of impediments to be faced by Mr Dinh if removed from Australia) offer some support for concluding that there is another reason for revocation of the decision to cancel his visa.
In the result, however, I am not satisfied that there is another reason for revocation of the decision to cancel Mr Dinh’s visa.
This state of non-satisfaction is consistent with my findings in relation to two of the three primary considerations. In this regard, the general position under Direction 79 which has the primary considerations being given greater weight than the other considerations is not displaced in the circumstances of this proceeding.
This is especially so given that I have attributed to the each of those of the primary considerations that favour non-revocation of the visa cancellation decision significant weight in the circumstances, something which I have not done in relation to those of the other considerations which weigh in favour of revocation of that decision.
DECISION
As I stated at the beginning of these reasons, in this proceeding the task for the Tribunal is to decide whether it is satisfied that Mr Dinh passes the relevant character test or that there is another reason why the decision to cancel his visa should be revoked.
I am not satisfied that Mr Dinh passes the character test.
I am also not satisfied that that there is another reason why the decision to cancel his visa should be revoked.
For these reasons the decision under review is affirmed.
I certify that the preceding 174 (one hundred and seventy-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell
.....[sgd].................................................
Associate
Dated: 12 August 2020
Date of hearing: 3 August 2020 Advocate for the Applicant: Christopher Wong Advocate for the Respondent: Kylie McInnes Solicitors for the Respondent: Australian Government Solicitor
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