Dinh (Migration)

[2018] AATA 5851

Dinh (Migration) [2018] AATA 5851 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chanh Tha Dinh

CASE NUMBER:  1815857

HOME AFFAIRS REFERENCE(S):           BCC2018/747887

MEMBER:Kate Millar

DATE:18 December 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 18 December 2018 at 11:05am

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – criminal record – risk to Australian community – driving offences – criminal charges withdrawn – young family – best interests of children – family ties in Australia – lengthy residence in Australia – decision under review set aside

LEGISLATION
Migration Act 1958, ss 5, 32, 48, 116, 359, 375, 376
Migration Regulations 1994, PIC 4013
Summary Offences Act 1953 (SA), s 21E

CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Dinh was originally from Cambodia, and is currently a citizen of New Zealand.  He came to Australia in December 2000 with his family.  Commencing in 2005, he has committed a number of offences, with the majority being driving while disqualified.   

2. Mr Dinh was charged with assault and carrying an offensive weapon together with two counts of property damage and one of stating false details. As a result, on 23 May 2018 a delegate of the Minister for Home Affairs cancelled Mr Dinh’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act) on the basis that his presence in Australia is or may be, or would or might be a risk the health and safety of an individual or individuals. 

3. Mr Dinh has applied for a review of this decision.  He is currently in immigration detention and appeared before the Tribunal by video-conference on 2 October 2018.  The Tribunal also heard from Mr Dinh’s ex-partner Ms Ebony Fuss, his sister Ms Sodany Dinh, his mother Ms Thi Chan Hen Son and his brother Mr Chan Thua Dinh.

4. As it was indicated at hearing that the current charges against him would be withdrawn and this would be determined within a short period, he was granted an adjournment to provide the outcome of the current charges.  There was some delay as the Magistrates Court had difficulty conducting a hearing via video conference and the hearing of the charges was adjourned to another date. 

5. A certificate of record was provided on 6 December 2018 which showed that on 28 November 2018 the charges of assault and carrying an offensive weapon were withdrawn, as was one count of property damage.  Mr Dinh was convicted of one count of damaging property and one count of stating false personal details.  He was discharged without penalty and required to pay compensation of $324.50. 

6. The issues for the Tribunal to determine in this case are whether a ground to cancel Mr Dinh’s visa is made out, and if so whether his visa should be cancelled.

7. This is a difficult decision.  It cannot be denied that there is a possibility Mr Dinh may be a risk to the Australian community in the future, in particular the risk involved in driving while disqualified.  However ultimately the majority of the recent charges against him have been withdrawn.  He has lived in Australia for 18 years and all of his family are in Australia.  Mr Dinh has two Australian citizen children who are eleven and six years old and he is actively involved in their care. Requiring him to leave Australia would separate him from his children, which engages Australia’s international obligations under the Convention on the Rights of the Child.  

8. The Tribunal has ultimately concluded that as the majority of the recent charges were withdrawn and because is actively involved in the care of his Australian citizen children the decision to cancel his visa should be set aside.   Mr Dinh should remain aware that this decision does not prevent his visa again being cancelled in the future if it becomes apparent that he is or may be a risk to the Australia. 

   CERTIFICATE ISSUED UNDER SECTION 376 OF THE ACT

9. The Department file contained a certificate issued under s.375A of the Act, which prevents the Tribunal disclosing information or documents covered by this certificate. The Tribunal requested the Department to review this certificate, and as a result it was revoked and a certificate was issued under s.376 of the Act.  This provides the Tribunal with the discretion to provide the information or documents to the applicant.

10. The existence of the certificate issued under s.376 was disclosed to Mr Dinh.  The information that is the subject of the certificate was put to Mr Dinh under s.359AA of the Act at the hearing where this could be relevant to his application. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

12. The issue in the present case is whether a ground for calling Mr Dinh’s visa is made out, and if so, whether his visa should be cancelled.

    Does the ground for cancellation exist?

13. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

14. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

    Offences with which Mr Dinh was charged

15. Mr Dinh was charged with ‘commit assault aggravated by use of offensive weapon’, with the date of the offence being 12 February 2018.  This charge has been withdrawn.

16. It was also put to Mr Dinh under s.359AA of the Act that South Australia Police (SAPOL) had reported he was arrested in February 2018 for aggravated assault on his girlfriend who refused to provide a statement or tell them where he was.  This report states Mr Dinh came to the attention of police when walking around Mawson Lakes.  He said he was looking for his girlfriend and named the alleged victim.  He was observed by other people walking around the streets with a baseball bat calling out her name prior to the police arriving.  The report states an interim intervention order would be issued. 

17. Mr Dinh said he had not argued with his girlfriend.  He said he went to court and the charges were dropped.  He was detained for one week.  He said his girlfriend went to court with him and said nothing had happened.  Mr Dinh said he was still in a relationship with his girlfriend, but that she did not attend the hearing because she is with her parents and is really sick.  He said it was hard for her to come.  Mr Dinh was asked if it was possible that she did not attend the hearing because she was frightened of him, but he said that she is homeless right now and is sick.  He said she talks to him every night.  Mr Dinh then said she was living with a friend who lives far away and has no money as she is broke without him.  He then said his mother and his “ex” have problems and his mother does not want him to see her so she didn’t come.

18. Mr Dinh gave many accounts of why she did not attend the hearing, several of which were contradictory.  I do not accept that she would not attend or provide a statement of support if the relationship was continuing. 

19. However, the charges of aggravated assault were withdrawn, and while further information was requested by the Tribunal (on its own initiative) from the Magistrates Court of any current intervention orders against Mr Dinh, there is no record before me of a current intervention order. 

20. Mr Dinh was also charged with property damage, ‘commit assault aggravated by use of offensive weapon’, commit assault, another charge of damage to building or motor vehicle and stating false personal details with the date of these offences being 14 December 2017. 

21. On 28 November 2018, one charge of property damage was withdrawn, as were the charges of assault and use of an offensive weapon.  He was convicted of one charge of property damage and one of stating false personal details. 

22. It follows that the charges that preceded the cancellation of his visa have been withdrawn other then one charge of property damage and one of stating false details.  Mr Dinh said he ‘bumped into’ a door of a liquor store and the property damage relates to the damage to the door.  I have no other information to the contrary about this offence. 

    Other offences

23. Mr Dinh’s criminal record was not contained in the information in the delegate’s decision.  The Tribunal put Mr Dinh’s criminal record to him under s.359AA of the Act.  A summary of this record is at Appendix 1 to this decision.  This encompasses offences from December 2002 with a large number of vehicle related offences including a number of convictions for driving while disqualified which ultimately resulted in two periods of imprisonment for four months and six months respectively.  He has offences of having possession of a knife in a school or public place, failing to store ammunition separately from firearms and use or have possession of a prohibited weapon. 

24. Mr Dinh said in response that he was young when he arrived in Australia and did not know the law.  He said that he knows he has hurt his mother and others by his behaviour.  He said when he gets out of immigration detention, he has a job and is now too old for this sort of behaviour.  He said he has made a lot of mistakes but now his family misses him.

25. It was also separately put to Mr Dinh under s.359AA of the Act that an intervention order was made against him on 10 March 2012 on the application of SAPOL, and that if he Tribunal relied on this information, it would find  he may be a risk to an individual. 

26. Mr Dinh said that his ex-girlfriend found out he was seeing someone else and sought an intervention order because she was jealous.  I do not accept this was the case as the applicant for the order was the police.  Mr Dinh said he did not know why SAPOL would apply for the order because he did not touch his ex-girlfriend. 

27. Mr Dinh’s offences and past conduct show he may be a risk to the health and safety of individuals as he has been convicted of offences relating to carrying an offensive weapon.  He may be a risk to specific individuals in the community as shown by the intervention order issued 12 March 2012 and the reports by police of aggravated assault of his current partner.  He may also be a risk to the good order of the Australian community as his repeated driving offences, in particular for the same offence of driving while disqualified, shows an ongoing disregard for the law in Australia relating to licensing of drivers. 

28. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

29. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

30. The family are originally from Cambodia, and Mr Dinh was born in a refugee camp.  The family relocated to New Zealand in 1994 when he was 15 years old.  Before he arrived in Australia Mr Dinh qualified as a mechanic and panel beater in New Zealand. Mr Dinh arrived in Australia with his family on 30 December 2000. 

31. Mr Dinh’s parents live in Australia, as do his three brothers and four sisters.  He has three Australian citizen children. 

32. Mr Dinh said after he arrived in Australia he was stabbed, and a person was convicted for this offence.  He said that is why he has carried weapons.  His brother also independently gave evidence that he had been stabbed after he came to Australia, and said Mr Dinh’s ex-wife had him stabbed and he had to have a blood transfusion.  They both said a person named Hang was convicted.   There is no other evidence of the circumstances of any offence against Mr Dinh.  Nor, even if there was an offence committed against him, would this excuse his own offences regarding carrying an offensive weapon or having a knife at a school.  

33. Mr Dinh said all he cares about now is supporting his children.  His children, his parents and his siblings live in Australia.  He said he recognises he cannot get into trouble anymore and he wants to be a good father.  He said there is no-one in New Zealand for him. 

34. Mr Dinh said he was not sure if he would harm himself if he was separated from his family. 

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

35. Mr Dinh’s visa is a Subclass 444 special purpose visa and he is not required to have a purpose to his travel to and stay in Australia.

36. Mr Dinh has been in Australia for 18 years.  His family, in particular his children, are in Australia and he relies on his lengthy residence in Australia and his family connections as compelling reasons to remain in Australia.

37. The lengthy period Mr Dinh has been resident in Australia must be given due weight, and this requires careful consideration to be given to his individual circumstances before his visa is cancelled. 

38. A Subclass 444 visa does not have an end date, and the holder of a subclass 444 visa is only required to continue to be a citizen of New Zealand to continue to hold the visa.  As such the holder may have an expectation that they can remain in Australia.  Mr Dinh should be clear that he cannot expect he will be allowed remain in Australia if his behaviour may be a risk to the Australian community. 

39. Mr Dinh’s ties to Australia and his lengthy residence in Australia weigh in favour of his visa not being cancelled.    

    The extent of compliance with visa conditions

40. There are no conditions on Mr Dinh’s visa and this does not apply. 

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

41. Mr Dinh has three children who are Australian citizens who would be affected by a decision to cancel his visa. 

42. Mr Dinh’s eldest child is 15 years old.  He said he last saw her in 2015, and that because he was divorced from her mother culturally they are not allowed to be together.  He said he pays child support to assist in her support. 

43. Ms Fuss also gave evidence that Mr Dinh does not see his eldest child because the Cambodian culture is hard and does not allow him to see her.  It follows that Mr Dinh’s place of residence will not cause psychological or emotional harm to his eldest child as he has no contact with her. 

44. Mr Dinh has two younger children, a son who is eleven and a daughter who is six.  He is named as the father of these children in their birth certificates.  Mr Dinh said he provides care for his younger children three or four days a week. 

45. The mother of the children also gave evidence that Mr Dinh has regular care of the children, and said he has them over for dinner once a week and they stay with him every second weekend. 

46. While Mr Dinh may have overstated the care he has of his children, I am satisfied that he has regular care of the children as he provided their ages, dates of birth, schools they had attended, and best and worst subjects at school in oral evidence that was consistent with the independent oral evidence of the children’s mother. 

47. Mr Dinh states he pays child support for all three children, and his child support payments are deducted from his salary. 

48. I accept that if Mr Dinh is removed from Australia this will cause his children financial hardship as he will be unable to pay child support, at least until he is re-established in New Zealand.  I am also satisfied that if his visa is cancelled and he leaves Australia this will cause his younger children psychological and emotional hardship. 

49. Mr Dinh’s mother, father, three brothers and four sisters are in Australia, together with his nieces and nephews.   Mr Dinh is the eldest child.

50. His parents are divorced, and his three brothers currently live with his mother. According to his mother, she and the rest of the family are Australian citizens. 

51. Mr Dinh said his mother is old and sick and needs surgery.  He said she has a problem with her arm, but was not sure what this was.  He said she can’t think properly, gets migraines and has trouble breathing.  He said she has been in hospital a lot and the ambulance has come a lot, but thought this was from being stressed about her children and about her divorce from his father.  

52. A letter was provided from his mother’s doctor, however this does not provide a list of any conditions from which she suffers.  The letter from her doctor states that his mother is stressed because Mr Dinh may be deported, and that this deportation would have significant consequences on the mental health of the whole family. 

53. His mother said she has a problem with her eye and cannot see properly and a problem with her shoulder from a car accident in 2014.  She has asthma and a knee condition that makes it difficult for her to walk.  She has a heart problem. 

54. I accept it would cause his mother hardship if he was required to leave Australia, although the degree to which Mr Dinh supports or provides care for his mother is limited.  Mr Dinh was granted home detention bail on condition he reside with his mother until the charge of aggravated assault was withdrawn.

55. Mr Dinh’s father is currently living with one of his sisters.  According to his sister, this is not his biological father, who left after he was born.  Three of his sisters live in South Australia and one sister lives in Western Australia.  Mr Dinh’s mother and brother gave evidence that his sister in Western Australia has recently been diagnosed with breast cancer.  Mr Dinh said he was not aware of this before the hearing.  No medical evidence was provided in support of this diagnosis, but I have no cause to disbelieve the oral evidence of his mother and brother.

56. Mr Dinh’s sister said Mr Dinh had a difficult childhood as he had to collect bottles and cans to support the family when they were in the refugee camp.  She said she herself sees Mr Dinh as a father figure and would suffer hardship if he is required to leave Australia. 

57. Mr Dinh’s brother gave evidence and said that Mr Dinh acts as his father and that Mr Dinh was affected by being stabbed after he came to Australia.  He said it is heartbreaking for the family and particularly Mr Dinh’s mother that he is in detention. 

1. I accept that if Mr Dinh is removed from Australia it will cause his mother, father and siblings emotional or psychological hardship.

2. Mr Dinh said he has a job in asbestos removal to which he can return if he is released from immigration detention.  He said his job is being held for him because it was with a friend, but could not recall his friend’s full name.  He provided an email from the office manager of his employer stating that Mr Dinh has been a valuable employee and they would be happy to have him back.  A search of his employer on the internet provided information on the employer, such as the address and telephone number, consistent with the email provided by Mr Dinh. 

3. He said he has qualifications in automotive engineering, which allows him to be a mechanic, and in panel beating.  He obtained the automotive engineering qualification in New Zealand, and this allowed him to work as a mechanic in New Zealand.  It follows it is likely he could re-establish himself in New Zealand after a period of adjustment.

4. Mr Dinh said he would not be sure whether he would harm himself if he was separated from his family.  I accept that being removed from Australia would cause him psychological and emotional hardship. 

   The circumstances in which ground of cancellation arose

5. In regard to the offences of 14 December 2017, Mr Dinh said he was selling cherries across the road from a bottle shop which he entered and “bumped into” a door which was not working.  He pleaded guilty to property damage. 

6. The charges of aggravated assault and assault were withdrawn together with the charge of carrying an offensive weapon and one count of property damage.  He said he was on remand for two months for stating a false identity. 

7. These offences are against a backdrop of a history of offending that commences two years after he arrived in Australia.  There are a large number of repeat offences for driving while disqualified as well as offences involving carrying an offensive weapon. 

8. The number of driving offences with which Mr Dinh has been charged does not support that he did not know the law, or give confidence about his statement that he will not offend again.

9. The Tribunal was also concerned about a previous intervention order that was sought by the police and confirmed by the court on 26 March 2012. This is shortly after his youngest child was born.  The mother of this child said she thought there was a girl who had an affair with Mr Dinh while she was pregnant and was trying to separate them. 

10. The Tribunal was also concerned about the conviction of possession of a knife in a school or public place.  Mr Dinh said he was in a friend’s car at the time and that it was not his knife.  He said he was not charged with this offence, but I do not accept this was the case as the record shows he was convicted of this offence. 

11. Mr Dinh said he was picking up his son from school, but said he was about 10 blocks away from the school. The offence appears at s.21E of the Summary Offences Act 1953 (SA), and applies when a person has possession of a knife in a school or public place.  It is not clear whether Mr Dinh was in a school or a public place so I assume in his favour he was in a public place.  However, it must have been established that he had possession of the knife for him to have been convicted of this offence. 

12. Mr Dinh said that he has been obsessed with cars, particularly sports cars, but has now sold his car and does not intend to own another sports car.  Given his long history of driving offences, his ability to comply with periods of disqualification from holding a driver’s license must be doubted.

13. The circumstances of Mr Dinh’s offending remained somewhat opaque to the Tribunal, and there was no further information available to it.  However his criminal record results in a finding that he may be a risk to the Australian community or individuals within the community in the future.  Given his past behaviour, the risk of further driving offences, particularly driving while disqualified and the risk of him carrying weapons; this weighs heavily in favour of cancelling his visa.

    Past and present behaviour of the visa holder towards the Department

14. Mr Dinh did not respond to the notice advising him of the potential cancellation of his visa, and attributed the cancellation of his visa to being on remand and not responding to the notice.  This is contrary to the information in the delegate’s decision that Mr Dinh responded to an email sent to him and confirmed the email and postal address where the notice was sent.

15. His mother said the letter regarding the cancellation came when he was in prison, and she cannot read English and did not know what this was about so she threw it away.  I am not satisfied that Mr Dinh has responded to correspondence with the Department in a timely manner. 

16. Mr Dinh said there have been no issues with his behaviour while on remand or while in immigration detention.  There is nothing before me to the contrary. 

17. As I do not accept that Mr Dinh did not receive the notice of intention to cancel his visa, but his conduct towards the Department has not otherwise been of concern this weighs marginally in favour of cancelling his visa. 

    Whether there would be consequential cancellations under s.140

18. There are no consequential cancellations that would result from Mr Dinh’s visa being cancelled. 

    Whether there are mandatory legal consequences of the visa being cancelled

19. Mr Dinh is currently in immigration detention, and if his visa is cancelled it is likely he will be deported to New Zealand.  If as a consequence of the cancellation he is removed from Australia he would be a ‘behaviour concern non-citizen’ as defined in s5(1) of the Act and will not meet the criteria in s.32(2) for the grant of a further Subclass 444 visa.  Mr Dinh will also not meet public interest criterion 4013 which is a requirement for some visas including a tourist visa.

20. There are also limited visas he could apply for from within Australia as s.48 of the Act bars him from applying for visas other than specified visas.  There is nothing before me to indicate he would be eligible for a visa of the type specified.

21. As a result, I find the most likely outcome of his visa being cancelled is that he would be removed from Australia. 

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

22. Article 3.1 of the Convention on the Rights of the Child (Convention) states that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child will be the primary consideration.

23. Article 9 of the Convention provides that State Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.  It goes on to state at Article 9(4) that where separation results from action initiated by the State Party, such as deportation, the State Party will provide parents with information about the whereabouts of the absent parent.

24. In issue in this matter are the best interests of Mr Dinh’s children, in particular his two younger children who he sees regularly.  The interests of his eldest child differ from the younger children as the eldest child does not have any contact with Mr Dinh.

25. Mr Dinh is separated from the mother and primary carer of his younger children.  If Mr Dinh is removed from Australia he will be separated from his children as his children and their mother will remain in Australia. 

26. Mr Dinh and the mother of the two younger children gave evidence that the children are distressed by Mr Dinh’s absence and their behaviour has deteriorated due to this distress.  I accept that his removal from Australia would not be in the best interests of his two younger children.  It will also reduce the financial support available to his eldest child as he will, at least until he re-establishes himself in New Zealand, be unable to pay child support. 

27. This weighs heavily in Mr Dinh’s favour as a reason not to cancel his visa. 

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

28. While a Subclass 444 visa is a temporary visa, it has many features of a permanent visa.  It allows a New Zealand citizen to enter and stay in Australia as long as the person remains a citizen of New Zealand.  Mr Dinh has not left Australia since he arrived in 2000, and continues to be a citizen of New Zealand. 

29. Mr Dinh has strong family ties in Australia, and says he does not have any family in New Zealand.  All of his extended family and his children are in Australia. 

30. Mr Dinh has a job available to him in Australia, however said this may have been since 2017 and is not a longstanding position, therefore I do not find this a strong tie to Australia.

    Any other relevant matters

31. Information on the Department file included an allegation that Mr Dinh is a prospector or nominee of the Hells Angels Motorcycle Gang.  This information was put to Mr Dinh under s.359AA of the Act.

32. Mr Dinh denied being associated with or being a member of this group.  There is no information other than an allegation to show either that he is a member of this group or the effect any such membership has or should have on this application. 

33. I am unable to conclude on the information before me either that he is a member of this group or, if he is a member, the effect it should have on the consideration of this matter. 

    CONCLUSION

34. Mr Dinh has an extensive history of driving offences, with other offences of a serious nature including carrying an offensive weapon.  He has been convicted of a number of driving offences to the extent that he has been imprisoned twice for these offences. 

35. As a result is not possible to rule out that he will be a risk to the Australian community in the future.  From his previous history, this risk is that he will disobey laws that relating to licensing to drive a motor vehicle and offensive weapons. This weighs heavily in favour of cancelling his visa.

36. However, the majority of the charges that led to the cancellation of his visa have now been withdrawn.  The circumstances that led to his visa being cancelled were the charges for offences of aggravated assault, assault, stating false details and two counts of damage to property.  The aggravated assault, assault and damage to property charges were withdrawn, leaving him with a conviction for damage to property and stating false details. 

37. Mr Dinh has been in Australia for a total of nearly 18 years and for all of his adult life.  All of his family including his Australian citizen children are in Australia.  He has strong family ties to Australia both from his own extended family and his children.  These factors warrant careful consideration of the factors for and against cancelling his visa a decision is made to cancel his visa.

38. Mr Dinh is actively involved in the care of his children and the majority of the charges have been withdrawn.  He does not have family in New Zealand.  Removing him from Australia would separate him from his two younger children who are eleven and six years old.  As he is actively involved in their care, is not in the best interests of his children, and may breach Australia’s international obligations under the Convention.  It will cause all his children some financial hardship if he is unable to pay child support. 

39. This matter is finely balanced due to Mr Dinh’s lengthy history of disobeying laws, particularly in relation to driving.  However ultimately the best interests of his children, his family ties in Australia and his lengthy residence in Australia has weighed in his favour. 

40. Having considered all of the information before me, I have concluded the decision should be set aside and substituted with a decision not to cancel his visa.  Mr Dinh should remain acutely aware of his obligation to comply with Australian laws because his visa may be cancelled by the Minister again if he re-offends or is otherwise viewed as a risk to the Australian community. 

    DECISION

41. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

    Kate Millar
    Member

    
    

    APPENDIX 1: LIST OF OFFENCES

Date of offence	Offence	Term of imprisonment
29 August 2017	Possession of a knife in a school or public place
5 August 2017 10 March 2016 29 April 2007 20 May 2006	Carry an offensive weapon
7 June 2017	Breach of bond
21 July 2017	Drive under disqualification or suspension 16 convictions in the period	6 months imprisonment commencing 10 March 2016 4 months imprisonment commencing 26 February 2013
10 March 2016	Fail to store ammunition separately from firearm
10 November 2015	Use or have prohibited weapon
20 November 2010	Drive at dangerous speed
22 May 2011	Drive with excess blood alcohol
17 September 2005 - 22 May 2011 (5 occasions)	Drive with excess blood alcohol
22 May 2011 28 March 2009 14 December 2008	Contravene a condition of a probationary license
23 May 2010	Disorderly behaviour
28 March 2009	Fail to carry license or permit
23 March 2008	Dishonestly take property without consent
24 September 2008	Breach of bond
15 October 2005 - 10 September 2008 (7 occasions)	Drive unregistered motor vehicle
15 October 2005 - 10 September 2008 (6 occasions)	Drive uninsured motor vehicle
29 March 2008 - 10 September 2008 (4 occasions)	Duty to hold a license
29 March 2008 - 10 September 2008 (3 occasions)	Contravene a defect notice
29 March 2008	Alter, obscure or remove a defect notice
10 September 2008 15 December 2005	Fail to comply with bail agreement
22 October 2002 - 24 May 2008 (4 occasions)	Drive, sell or dispose of vehicle contrary to defect notice
12 November 2005	Attempt to damage property
1 December 2005	Estreatment of bail