Do and Minister for Home Affairs (Migration)

Do and Minister for Home Affairs (Migration) [2019] AATA 1591 (2 July 2019)
Division:GENERAL DIVISION
File Number: 2019/0096
Re:Thi Thu Phuong Do
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Ms Anna Burke AO, Member
Date:2 July 2019
Place:Melbourne

The Tribunal:
(a) sets aside the decision under review, pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act); and
(b) remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to s 43(1)(c)(ii) of the AAT Act, that the discretion in section 501(1) of the Migration Act 1958 be exercised in favor of the Applicant.
.....[sgd]...................................................................
Ms Anna Burke AO, Member
CATCHWORDS
MIGRATION – refusal of visa on character test – criminal record – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk of reoffending – best interests of minor children – expectations of the Australian community – decision under review set aside.
Legislation
Administrative Appeals Tribunal Act 1975
Migration Act 1958
Cases
DKXY v Minister for Home Affairs [2019] FCA 495
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs Re [2002] AATA 458
Murphy v Minister for Immigration and Border Protection (Migration) Re [2018] AATA 750
Rabino and Minister for Immigration and Border Protection (Migration), Re [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Ministerial Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, 20 December 2018
REASONS FOR DECISION
Ms Anna Burke AO, Member
2 July 2019
INTRODUCTION

Ms Thi Thu Phuong Do (the applicant) is seeking to review a decision made by a delegate of the Minister for Home Affairs (the Minister) to refuse her partner, Mr Trong Quang Vu, a Prospective Marriage Visa on the grounds he does not pass the character test.
On 1 March 2018 a delegate of the Minister issued Mr Vu a notice of intention to consider refusal to grant him a Prospective Marriage (Temporary) (Class TO) Visa under s 501(1) of the Migration Act 1958 (the Act).
On 17 December 2018 a delegate of the Minister made a decision to refuse

Mr Vu’s application for a visa under s 501(1) of the Act. Notice of this decision was provided to Mr Vu’s representative via email. The delegate found that Mr Vu did not pass the character test, as set out in s 501(6) of the Act. In particular, the delegate found that Mr Vu failed to meet s 501(6)(a) of the Act, as he had a substantial criminal record

(as defined by s 501(7)). The delegate found that there were no sufficient countervailing considerations in Mr Vu’s case to warrant the Australian community accepting any level of risk. The delegate decided to exercise the discretion to refuse the visa. In accordance with s 501(1) of the Act, the consequence of this decision was that Mr Vu’s application for a Prospective Marriage (Temporary) (Class TO) Visa was refused.
On 8 January 2019 the Administrative Appeals Tribunal (the Tribunal) received an application from Ms Do, Mr Vu’s partner and sponsor, lodged under s 500(1)(b) of the Act. Ms Do sought review of the decision to refuse to grant her partner’s visa as she believed the delegate’s decision was incorrect on the following (but not limited to) points:
During the decision process, the Delegate from the Visa Application Character Consideration Unit (herein “VACCU”) did not take into consideration additional supporting documents that was emailed on 12 December 2018 to the Delegate from the Australian Consulate General (hearing “ACG”),
The Delegate has not given weight towards the ‘Best interests of minor children in Australia’ with respect to Australia’s international obligations on the Convention of the Rights of the Child, namely, Calvin Hoa Quang VU born on 28 July 2015; and
The Delegate from the ACG erred in natural justice. The Delegate failed to forward a full and undisclosed copy of the ‘Response to Requests for Comment Regarding Disclosable Court Outcomes’ dated 9 November 2016 to the Delegate from the VACCU particularly, pages 33 to 45 (inclusive).
At the hearing of this application on 2 and 3 May 2019, Ms Do was represented by Mr Phil Cadman of Counsel, instructed by Mr Adewale Oladejo of VisaTEC Legal. Mr Keith Sypott, solicitor advocate from the Australian Government Solicitor, appeared for the Minister. The Tribunal was assisted by interpreters in the Vietnamese language. The Minister lodged a set of paginated documents (the G-Documents) and also provided the Tribunal with a consolidated paginated copy of the applicant’s material. The applicant provided numerous statements from witnesses and referees. The following witnesses provided evidence under oath or affirmation: Ms Do, Mr Vu, and Mrs Bich Ngoc Thi Vu.
BACKGROUND
Mr Vu is a 37-year-old Vietnamese national who currently lives in Vietnam where he is employed as a driver and supervisor. As a child, Mr Vu fled with his family to a refugee camp in Hong Kong where it was reported he was exposed to considerable violence. His parents subsequently separated and, for a time, he lived with his maternal grandmother. His mother and younger brother migrated to Australia, after his mother married an Australian citizen, whom she meet whilst holidaying in Australia. Mr Vu remained in Vietnam with his father as he was overage to be sponsored. Mr Vu is divorced and has a child from that failed relationship.
In June 2009 Mr Vu travelled to Australia on a three-month sponsored family visa to visit his mother and brother in Sydney. The visa expired on 8 September 2009 and Mr Vu continued to reside in Australia unlawfully. In November 2010 Mr Vu was arrested in relation to the cultivation of cannabis. He was sentenced to a term of imprisonment in August 2011. Upon completing his custodial sentence he agreed to return to Vietnam on
4 January 2012.
During his 2009 visit to Australia Mr Vu visited some friends in Melbourne, and it was during this time he met Ms Do. Mr Vu and Ms Do formed a relationship over time and were subsequently engaged in Vietnam on 19 October 2014. They have a son who was born in March 2015. Ms Do originally came to Australia from Vietnam on a student Visa. She is now a permanent Australian resident, divorced and has a daughter from her former marriage.
ISSUES
There are two central issues before the Tribunal in this application for review:
·does Mr Vu pass the character test in s 501(6) of the Act; and
·if Mr Vu does not pass the character test, should the Tribunal exercise its discretion to not refuse the visa?
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act gives the Minister the power to refuse to grant a visa if a visa applicant is unable to satisfy the Minister that he or she passes the character test. The term character test is defined in s 501(6) of the Act. Relevantly for this matter, ss 501(6) and (7) provide that:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or …
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
…
If a person is found not to pass the character test, the discretion to refuse the visa must be considered. Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. A person or body having those functions or powers, including the Tribunal, must comply with any relevant direction (s 499(2A) of the Act; see also Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J). Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction) is a direction made under s 499 of the Act and provides a guide for decision-makers performing functions or exercising powers under s 501 of the Act (paragraph 6.1(4) of the Direction).
Paragraph 6.1 of the Direction outlines the objectives of the Act and the Direction, stating in part:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
…
Paragraph 6.2 of the Direction sets out General Guidance relating to the Government’s intent:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501… The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B…
The principles referred to in the General Guidance (and reproduced below) constitute a framework within which decision-makers apply the considerations in Part A, B, or C of the Direction (paragraph 6.3):
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or 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 a 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.
In deciding whether to exercise the discretion to refuse to grant a visa, the Tribunal should have regard to the primary and other considerations in Part B of the Direction. Paragraph 11(1) of the Direction provides that the primary considerations are:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian Community.
Paragraph 12(1) provides that the other considerations that must be taken into account, where relevant, include (but are not limited to):
a)        International non-refoulement obligations;
b)        Impact on family members;
c)        Impact on victims;
d)        Impact on Australian business interests
EVIDENCE
Mr Vu’s criminal offending
The following table has been derived from records against Mr Vu as outlined in a National Police Certificate of 8 February 2016:

18.     COURT

19.     COURT DATE

20.     OFFENCE

21.     COURT RESULT

Melbourne County Court

22.     11 August 2011

23.     Cultivate Narcotic Plant Commercial Quantity - Cannabis

24.     Imprisonment for 20 months. 11 months of sentence suspended for 2 years

Detective Sergeant Michael Walsh provided a summary, dated 9 March 2019, of the police investigation and subsequent prosecution in respect of Mr Vu; as a copy of the brief of evidence in respect of his criminal proceedings had been destroyed. He stated that on, 23 November 2010, the Victorian Police Drug Task Force executed a search warrant on a premises in Altona Meadows. They seized 157 cannabis plants, weighing 33.58 kg, from the house. The plants were being grown inside the home hydroponically, and the electricity supply to the home had been altered to bypass the electrical meter. Mr Vu and Ms Do were found to be present during the search and were subsequently arrested for cultivation of a drug of dependence.
During a record of interview Mr Vu stated that he was in Australia on a visitor’s visa, had been residing at Altona Meadows for two months prior to being arrested; and stated no comment when questioned in relation to Ms Do or any question relating to cultivation of cannabis. He admitted to overstaying his visitor Visa.
Post the interview, Mr Vu was charged in respect of cultivating and possessing a commercial quantity of a drug of dependence and theft of electricity, and was remanded into custody. Ms Do was interview by police and subsequently released without charge. Detective Walsh noted that neither Mr Vu nor Ms Do were known to police prior to the execution of the search warrant on 23 November 2010.
On 11 August 2011 Mr Vu, following his guilty plea, was convicted in the County Court of Victoria on the charge of cultivation of cannabis in commercial quantities and sentenced to 20 months imprisonment, with 11 months suspended for two years which in effect resulted in him serving nine months of imprisonment.
Chief Judge Rozenes (as he was then) in his sentencing remarks stated:
By way of background you are one of a number of accused who up before the court as part of Operation ENTITY. You are not a co-accused with the others before this Court in any real sense beyond the fact that you were apprehended for similar offending as part of a targeted operation.
In brief summary, the offending in your case was detected by specialist investigation into the cultivation and trafficking of Cannabis. On 23 November 2010, some sixty seven search warrants were executed on residential premises identified as growing Cannabis by hydroponic means. Members of the Victorian police drug task force attended at… in Altona Meadows where you were arrested. The property is owned by your mother, and at the time of offending the property was being leased to a person known as ‘Dung’ who was a family friend’s son. Police located cannabis plants in a number of rooms in the house growing under lights and hydroponic watering systems.
In total 157 cannabis plans weighing 33.58 kilograms were seized from the premises. Police also seized numerous items associated with cannabis cultivation and an illegal electric bypass was also located.
At the time of the offending you were an ‘unlawful citizen’. You pleaded guilty at the committal mention. The prosecution submitted that your role was that of what is commonly known as a “crop sitter”, in that you did not have a commercial interest in the final product beyond minding the crop for reward.
….
Mr Vu’s Evidence
Mr Vu tendered a statement and provided a consistent recount of his criminal charges under oath at the hearing. Mr Vu explained that he had travelled to Australia in 2009 on a three month visitor’s Visa to spend time with his mother and brother in Sydney; as he had not seen them for a very long time. He explained that during this period he was having difficulty with his then wife who remained in Vietnam, he discovered she had been cheating on him; he became very depressed and as a result was not thinking clearly. Additionally his relationship with his mother was very strained. He did not appreciate her telling him what to do, particularly as he was an adult and had not lived with her for a long time. He rebelled against his mother, overstaying his Visa after travelling to Melbourne to visit friends.
Mr Vu explained that his mother had been adamant that he needed to leave Australia before his visa expired, emphasising that he could not overstay. He explained that his mother was not aware that he remained in Melbourne and had overstayed his visitor visa. Mr Vu stated he was aware that his visa had expired, but in his depressed state he continued to remain in Melbourne; as he did not want to return to Vietnam to face his marriage breakdown. Mr Vu advised the Tribunal he started frequenting the casino in Melbourne playing Baccarat where he lost considerable amounts of money. Mr Vu could not recall exactly when he commenced gambling; but did remember one particular friend, Mr Hung, who he described as very generous. Mr Hung loaned him a considerable amount of money which he estimated to be $40,000.
Mr Vu explained that he borrowed the money both to gamble and to send back to Vietnam to raise his son. He advised the Tribunal that he did not work whilst in Australia. He stressed that at this time he was not thinking clearly as he was depressed, which ended in a spiral of debt due to borrowing from Mr Hung; who was more than happy to loan him the money. Eventually, Mr Hung asked Mr Vu to become a crop sitter as a way to reduce his debt and Mr Vu agreed.
Mr Vu gave evidence that he had advised Mr Hung that his mother owned a house in Melbourne which she had rented out to the son of a family friend. Mr Vu explained

Mr Hung fitted out the home for the purposes of cultivating cannabis and that Mr Vu then moved in. He was not involved in the setting up of the hydroponic system, but his role was to look after the plants by watering them, tending to their roots, providing them with “medicine” and cleaning the rooms.
Two months after moving into the house Mr Vu was arrested. Mr Vu explained that his intention was to move into the house to perform the crop sitting job to pay off his debt and then move on, that he had no involvement with the cultivation, sale, production or use of cannabis beyond the need to repay his debt.

Mr Vu told the Tribunal that he met Ms Do whilst in Melbourne, that they were from the same town in Vietnam and over time they developed a friendship, but nothing more as both were married to other people at that stage. Mr Vu gave evidence that on the day of his arrest Ms Do was present at his property as she had loaned him her car and she was there to collect it. He stated Ms Do had never been to the property before that time and she was unaware of his involvement as a crop sitter.
Mr Vu said that Ms Do visited him on numerous occasions whilst he was in prison; he found this to be a great support. After his departure from Australia, Ms Do visited Mr Vu in Vietnam on several occasions. Their relationship deepened as both had separated from their previous partners. Subsequently, they were engaged and had a child together.
During the hearing the respondent asked Mr Vu if he knew about Ms Do’s criminal charges; to which Mr Vu expressed surprise and dismay, as he stated he was unaware that she had had any trouble outside of being with him on the day he was arrested.
Mr Vu also emphasised at the hearing that his mother was unaware that her house was being utilised for the cultivation of cannabis, and that she only became aware of these matters after his arrest. He indicated that she had also been a great support since this time and visited him on numerous occasions whilst in prison in Melbourne.
Mr Vu advised the Tribunal that he has a son by his first marriage who resides with his mother in Vietnam. He stated that he sees his son monthly and provides financial support towards his upbringing.
Mr Vu was adamant that he had never used illicit drugs at any time in his life, describing them as dangerous; and that his involvement as a crop sitter was solely to repay his gambling debts. Mr Vu also firmly claimed that he had never gambled in Vietnam prior to coming to Australia, and that he had not been involved in any gambling since as he understood it was not a shortcut to becoming rich.
Ms Do’s Evidence
Ms Do explained she had met Mr Vu in Melbourne. That he often visited the shop she was working in and mutual feelings developed over time. Ms Do indicated that she was initially unaware Mr Vu had overstayed his Visa; only learning about it sometime later. She had visited him in prison and subsequently in Vietnam and, following the breakup of her marriage, their relationship had developed. They had become engaged, had a traditional marriage ceremony in Vietnam and have a child together. She also has a daughter from her previous marriage.
On the morning of Mr Vu’s arrest, Ms Do claimed to have come to his home to pick up the car that she lent him. Stating it was because she was his friend and public transport was not convenient, she believed she had only lent him the car on two occasions. She had never visited his home before and was not aware of the cannabis cultivation inside the house. On the day of the arrest she was interviewed by police for two hours and later released without charge.
Ms Do told the Tribunal that it was during her prison visits that she became aware of Mr Vu’s situation. She said he had told her that he had been depressed because he had learnt his wife was cheating on him and that his marriage had failed. She understood that he had been seduced by his friends into gambling, that he had borrowed money and that he had agreed to cultivate the cannabis to work towards paying back this debt. She was unaware of any of the details of how much cannabis was involved or the fact the house was owned by his mother.
Ms Do’s criminal offending
The following table has been derived from records against Ms Do as outlined in a National Police Certificate of 8 February 2016:

45.     COURT

46.     COURT DATE

47.     OFFENCE

48.     COURT RESULT

Melbourne County Court

49.     27 May 2014

50.     Obtaining Financial Advantage by Deception

51.     Imprisonment for 6 months suspended to be of good behaviour for 12 months

On 27 May 2014 Ms Do, following a guilty plea, was convicted in the County Court of Victoria of obtaining a financial advantage by deception to 6 months imprisonment suspended to be of good behaviour for 12 months.
Chief Judge Rozenes (as he was then) in his sentencing remarks stated:
In brief summary, your offending was detected when the police located cannabis plants growing at a house in Brookfield. Police traced the property to you and discovered your deception. I should note that you are not charged with any drug offences. Your offending is in relation to a home loan application made by you which is supported by two false payslips and an inflated valuation of assets and savings. You signed the contents of the application as true and correct and it was then given to the Westpac Bank. You were subsequently loaned $308,000.00 and purchased the property in Brookfield. You were arrested and interviewed on

8 October 2013 and made admissions to purchasing the property, agreeing that it was your signature on the application form and loan documents. You said you could not recall the address of the house or much of the details of the transaction. You indicated an intention to plead guilty on 28 March 2014. The property was confiscated under the Confiscation Act 1997, has been sold and the bank repaid, you have lost some $40,000 in equity.
Ms Do told the Tribunal that her family had loaned her some money to purchase herself a house in Melbourne as she was struggling with rental payment. A friend referred her to an agent in Footscray who had assisted her with the loan application. The agent explained that whilst the payslips were false, this would not cause her any consequences. She trusted them. Ms Do asserted that if she thought it was wrong she wouldn’t have done it; she believed it did not negatively affect anyone and was not serious. She emphasised that she had listened to the agent, trusted them and they told her there would be no consequences.
Following the purchase of the house, which she indicated she had purchased to live in, she went to Vietnam to assist with her parents’ care, as one of them was ill at the time. During her absence she leased the house out to tenants. Ms Do said she was unaware the house had been used for the cultivation of cannabis as she had not inspected the house before she left, nor when she returned. She only became aware of it when she was interviewed by the police. She was adamant she had never been involved in the cultivation of cannabis.
In cross examination, the respondent pointed Ms Do to a resident return visa and an application for Australian citizenship, which did not reflect her prior criminal charge. Ms Do also explained she had used a migration agent to secure a resident return visa and file the application for Australian citizenship. She said she had, at all times, advised the agent that she had a criminal charge and that she knew someone who had a criminal charge. She argued that, as there was no need to lie on the forms, if there was a mistake on the form it was made by the agent.
Ms Do explained that she receives child support for her daughter from her ex-husband but her daughter does not see her father often. She is in receipt of Centrelink benefits and is living with her children in a shared household with two other people. She occasionally receives financial support from her future mother-in-law, Mrs Vu, and her fiancé Mr Vu.
Mrs Vu’s Evidence
Mrs Vu, Mr Vu’s mother, gave evidence at the hearing that she had purchased the Altona Meadows house following the settlement of her divorce from her former husband in Vietnam. She had purchased in Melbourne as it was cheaper than Sydney, and she had always intended to relocate with her youngest son when he completed his degree. She explained that she let the house in Melbourne in the interim, making arrangements directly with a friend in Vietnam whose son was studying in Melbourne.
Mrs Vu explained to the Tribunal that she and Mr Vu had fought when he was in Sydney. She had been adamant that he needed to return to Vietnam before his Visa expired. She only became aware he had overstayed his Visa when friends in Vietnam indicated he had not returned. She indicated she had not heard from him during this time, until his arrest.
She stressed to the Tribunal that she nearly collapsed when she was informed by police that her son had been arrested in her house for cultivating cannabis. She asserted that she had never been involved in anything illegal, had never been involved in cultivating cannabis and did not know people who cultivated cannabis.
Mrs Vu explained to the Tribunal that she had left Vietnam following difficulties with her husband, leaving her two sons behind. Mr Vu had to leave school to support his younger brother by driving taxis. She remarried to an Australian and eventually migrated to Australia with her younger son. She has subsequently separated from her second husband. She felt regret and guilt about the situation she had placed Mr Vu in, particularly as he had not had the opportunity to complete his education. She told the Tribunal she cried a lot when she first came to Australia, but her situation was so bad she had to leave Vietnam.
Mrs Vu was adamant that her son had never been addicted to drugs, had never used drugs and did not gamble in Vietnam. Mrs Vu advised the Tribunal that she had always worked hard, was employed as a seamstress and would never do anything to endanger her children. She told the Tribunal “no mother in this world would allow their son to act illegally in their house. I swear that I did not know about it.”
Mrs Vu was also shocked to learn of Ms Do’s criminal charges, observing that Ms Do was very nice and gentle, that she cried a lot when Mrs Vu visited her and observed she did not think she would be that silly. She said Ms Do came from a very good family who are not prone to such activities, and she can only apologise on her behalf. She dearly wishes Ms Do and her son could get another chance to turn their lives around.
CHARACTER TEST
Mr Vu has conceded that he does not pass the character test for the purpose of s 501(1), as defined in s 501(6), because he has a substantial criminal record, being a term of imprisonment of 12 months or more (s 501(7)). The Tribunal accepts that he does not pass the character test.
THE DISCRETION
As Mr Vu does not pass the character test, the Tribunal must consider

whether it should exercise the discretion to refuse to grant the visa under

s 501(1) of the Act.
The Minister issued Direction 79 under s 499 of the Act which sets out the considerations to be applied by the decision maker when exercising powers under s 501 of the Act. The General Guidance of Direction 79 states that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The Tribunal must have regard to the relevant primary and other considerations within Part B of the Direction.
Decision makers must take into account the primary and other considerations relevant to the individual case. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
Paragraph 11.1 of the Direction provides that:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
Paragraph 11.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date.
Decision-makers must have regard to factors including:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously.
b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
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;
d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)     The cumulative effect of repeated offending;
g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
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);
Counsel for Ms Do, whilst not seeking to minimise Mr Vu’s criminal offending, argued it was at the lower end of the crime scale. Counsel submitted that Mr Vu’s crime was a one off enterprise, performing a menial role for no financial gain and there was no cumulative effect of repeated offending. In terms of the Direction, Counsel argued that Mr Vu’s conduct would not be considered serious as it had not involved violence or sexual crimes; was not of a violent nature against women or children; and was not committed against vulnerable members of the community.
Additionally, Counsel for Ms Do did not dispute that Mr Vu had overstayed his visa, arguing that this again should not be considered serious in terms of the Direction.
Counsel for Ms Do argued Mr Vu had shown great remorse and insight into his criminal behaviour. Whilst he could not absolve the crime, it was described as out of character and, in the nine years since, Mr Vu has been in steady employment and has not reoffended. Counsel asked the Tribunal to consider if the Australian public would reasonably expect that a menial crop sitter should be denied being reunited with his family based on a crime committed nine years ago.
The respondent contended that Mr Vu’s criminal offending and migration misconduct was very serious. Arguing Mr Vu had remained in Australia unlawfully for some 848 days and had become involved in criminal activity during this period as an important cog in commercial scale cannabis production. The respondent argued the sentence of imprisonment imposed by the County Court reflected the seriousness of Mr Vu’s criminal conduct.
Whilst there is some conjecture over the extent of Mr Vu’s and his family’s involvement in the cultivation of cannabis, the Tribunal has before it no probative evidence beyond

Mr Vu’s conviction of being a crop sitter. The Tribunal accepts that was the extent of his role, and that Mr Vu felt coerced into acting as a crop sitter to repay his substantial gambling debt that he had accrued whilst depressed. However, Mr Vu was not young when his offences occurred and whilst factors may help explain his actions, they do not excuse his conduct; nor do they mitigate against the seriousness of the crime and its impact on the community at large. In addition, Mr Vu had violated the trust of the Australian community when he overstayed his visa; this is no small matter. The Tribunal finds that Mr Vu’s offending, being not of a violent or sexual nature, would be considered at the lower end of the scale in criminal terms but was nevertheless serious as reflected by his custodial sentence.
Risk to the Australian community
Paragraph 11.1.2 of the Direction provides that:
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2) In addition, decision-makers should have regard to the principle that 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.
(3) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence from independent and authoritative sources on the likelihood of the non-citizen reoffending; and
ii. evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii. the duration of the intended stay in Australia.
(4) Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
The delegate of the Minister in his reasons for refusal of Mr Vu’s Visa found:
I acknowledge Mr Vu’s comments that he is remorseful of his actions and feels that he caused significant inconvenience to the government and his family. I accept that while in custody Mr Vu endeavoured to rehabilitate and learn English and cooking noting his documents from Kangan Institute…
I also acknowledge that after his return to Vietnam and since May 2013 he gained employment as a Department Head of Sales and he also dedicated his time to local charities, noting a confirmation certificate regarding his charity work awarded to him by his employer and then award from the Vietnam Youth Federation in 2016 and associated photos.
I have taken into consideration that Mr Vu has applied for a prospective marriage (temporary) (class T0) visa, for the purpose of marrying his partner and applying to applying to remain in Australia. I have considered the risk of harm to the Australian community in the context of the permanent stay period and specific purpose of the visa application.
I have taken into account Mr Vu’s comments about the changes he has made his life however Mr Vu susceptibility to criminal pressures from others when under financial pressure means that he must be considered to remain vulnerable to such influences and that accordingly, further offending cannot be ruled out. As his past offending demonstrates, he could be drawn into offending of a very serious nature, despite not being inclined to such behaviour in his own right.
Having considered all available information detailed above, including Mr Vu’s criminal history, efforts at rehabilitation, the changes he has made to their life, I find Mr Vu to be an ongoing/low likelihood of reoffending.
Counsel for Ms Do conceded this factor may weigh slightly against granting the visa as

Mr Vu had committed a criminal act and there should be no expectation that he would automatically be afforded the right of being granted a visa to enter Australia. However, Counsel contended Mr Vu had committed one crime for which he has served his time, has not reoffended since and was not at risk—or at worst at low risk—of reoffending. Counsel asserted that Mr Vu has rehabilitated himself through steady employment since his return to Vietnam, engaging in charity work; not abusing drugs; not pursuing gambling; and now seeks to return to Australia to be a positive role model for his children. Counsel for Ms Do described the Sword of Damocles over Mr Vu, as he fully understands how serious his actions of the past have been, and that reoffending would obviously be an end to his relationship and the ability to be a father in any meaningful way.

Counsel for Ms Do emphasised that Mr Vu did not present an unacceptable risk to the Australian community as his crimes were not of a violent or sexual nature, or against women, children and vulnerable members of community. Counsel submitted that his criminality had been driven by the circumstances he was in at a particular time, and since then he has been a model citizen with no criminal conduct. His circumstances have greatly changed now that he is in a solid relationship with Ms Do and desirous of being a better father.
Counsel for Ms Do argued that the protective factors from his relationship with Ms Do and mother would be positive influences on him if he were allowed to return to Australia. Counsel for Ms Do further emphasised that Mr Vu’s and Ms Do’s shame and remorse were real, that they were naive of legal matters and previously had difficulty with understanding the system and language in Australia. Counsel noted that Mr Vu had disregarded his mother’s advice in the past when he had overstayed his Visa, but asserted that he now recognises that as an error.
Counsel for Ms Do submitted that Mr Vu had displayed, from the outset, an understanding of the seriousness of his offending when he pled guilty at the earliest convenience and cooperated completely with his removal from Australia. Counsel pointed to the sentencing remarks of Chief Judge Rozenes (as he was then) which stated:
Your background was set out in some detail in the report of Mr Simmons. You are 29 years of age and were born in Vietnam. Your parents fled when you were a child you and you spent time a refugee camp in Hong Kong, and were exposed to considerable violence[sic]. Your parents separated and you went to live with your grandmother. You had an unremarkable education, left school without any qualifications and worked on unskilled jobs to provide for your brother. You worked as taxi driver for five years and during this time engaged in polysubstance abuse. You have one son aged three from a previous relationship. You arrived in Australia in 2009 upon arriving in Melbourne developed a gambling addiction and was loaned $50,000 by a man named ‘Zhou’. Consequently, you agreed to crop sit in lieu of payment of your debt. You expressed remorse to Mr Simmons, and he stated that you ”present with symptoms of depression”. Mr Simmons noted that you should be referred to a psychiatrist in regard to determining the need for antidepressants.
….
Just as with other forms of addiction, your gambling may be viewed as indirectly responsible for the offending conduct, but the decision to offend was not the consequence of a disorder which impaired your judgement as to either the nature or the seriousness of the conduct you were contemplating.
On your behalf, Ms Harris submitted that I take into account the following matters by way of mitigation:
1.your offending is of the lower end of the spectrum;
2.there is no evidence of financial enrichment;
3.you have no prior convictions;
4.he pleaded guilty at the earliest opportunity and are entitled to the discounts applicable, as well is the fact that it is reflective of remorse;
5.you are not a drug user at the time of offending;
6.that you offended in the context of a gambling addiction you developed in order to fund your habit;
7.that you did not enter the country for the purposes of offending, and were only recruited once here; and
8.that you will be deported upon completion of his sentence and this is a form of extra-curial punishment.
The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim if any. I am required to balance the interests of the community in denouncing criminal activity with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
The cultivation of cannabis in commercial quantities is a serious offence carrying a maximum penalty of 25 years imprisonment. Production of cannabis hydroponically in domestic premises has become prevalent and once the electricity supply has been bypassed is difficult to detect. General deterrence and community protection must therefore play a significant role in the sentencing process.
That is so notwithstanding as in the case here that you are only involved in a menial level it what has often been described as “crop sitting”. I accept that you did not have any involvement in the setting up of the crop and did not expect any substantial reward from its cultivation. It is clear in your case as in the others in this operation that there was a great level of organisation and planning in the cultivation of significant quantities of cannabis by Vietnamese citizens most of whom were illegally in Australia and recruited quite deliberately. I of course only sentence you for your involvement and not that of the others but it is clear that crop sitters such as yourself constitute a necessary element to the successful undertaking. Without people such as you the enterprise would fail.
You entered into this agreement motivated by a desire to pay off your gambling debt, a debt that you incurred as a result of your drug use. Neither of these addictions it can be said reduce your moral culpability. You do not have the advantage of youth as others I have sentence for similar offending in this operation have. I have taken into account your early plea of guilty, and that you have no prior convictions as well as those matters contained in the written submissions. I also into account the fact that you will be deported as soon as you are able to be released, and I take this last fact into account in deciding to suspend part of the sentence rather than fixing a non-parole period.
The Tribunal notes that the sentencing remarks of Chief Judge Rozenes (as he was then) referred to a psychologist report prepared by a Mr Simmons which indicated that Mr Vu had engaged in polysubstance abuse. The Tribunal did not have Mr Simmons’ report despite the best efforts of the respondent, as it was destroyed with all the material associated with Mr Vu’s 2011 conviction. The Tribunal finds this fact was not established, as there was no evidence in the materials—or lead—before the Tribunal that Mr Vu had been a drug user. Both Mr Vu and his mother vehemently denied he has ever used any drugs let alone had a polysubstance habit.
Counsel argued that Ms Do’s actions involving the financial deception and visa applications were through naiveté, not deliberate deception. Counsel reiterated that neither Mr Vu, nor Ms Do, sought to minimise or excuse their actions but were deeply ashamed and remorseful of their conduct and the impact caused to the Australian community.
Chief Judge Rozenes (as he was then) in his sentencing remarks in respect of Ms Do stated:
On your behalf, Mr Hands submitted that I take into account the following matters by way of mitigation:
1.that you have no prior convictions and no matters pending;
2.that you entered a plea of guilty at an early opportunity;
3.that your offending is not a particularly serious example of this offending as it was constrained to one instance, no loss was suffered by the bank, and your house was confiscated;
4.that you are single parent on a limited income for Centrelink;
5.that your family resides in Vietnam and can provide much support; and
6.that you have good prospects for rehabilitation.
I note, again that you are not charged with the drug offences and I can only sentence you in relation to the charge before me. I was told by your counsel that you were in Vietnam at the time that the crop house was set up and, for that reason, the police withdrew the charge of cultivation. No explanation was offered as to how the house purchased by you came to be used for the cultivation of cannabis. The contract of sale was entered into by you on 28 April 2012 and you departed overseas on 10 May returning on 31 October. The cannabis crop was discovered on 10 October. It seems clear enough that you are involved in the purchasing of the property for a purpose other than occupation by you. The prosecution obviously did not think there was enough evidence to sustain a prosecution for cultivation. Unlike many others in your position who embarked upon similar frauds and who proffered as an excuse for like conduct the fact that they were simply intending to provide housing for their family you are in a different category altogether.
Counsel for Ms Do rejected any notion that Mr Vu and Ms Do were a family grouping of career criminals involved in the cultivation of cannabis. Counsel stressed that this was mere speculation based on coincidence and was supported by no corroborating evidence.
The respondent submitted that there was a real risk of Mr Vu reoffending as he may again engage in other serious conduct as demonstrated by his previous behaviour. The respondent claimed that the Tribunal should be rightly concerned about his willingness to disregard Australian laws in the future; and also noted that there was no evidence that the debts that had driven him to engage in his criminal activity have been repaid. The Respondent asserted that Mr Vu could again be pressured to engage in criminal activities to expunge these debts. The respondent argued that the impact of commercial scale drug operation on the Australian community is well known, and should Mr Vu descend once more into involvement with the cultivation of illicit drugs he will again play an important role in its vast negative impact on the administration of law, public health, society and individuals; and as such should not be afforded the right to return to Australia.
Further, the respondent contended that neither his partner Ms Do, nor his mother Mrs Vu, would appear to be protective influences in relation to further risk of reoffending. Particularly in light of Ms Do’s own criminal conviction of financial deception, which again facilitated the cultivation of cannabis, and additionally her disregard for Australian laws when she made a false declaration on her resident return visa application.
The respondent asserted that Mr Vu and Ms Do were evasive in their oral evidence before the Tribunal; that it was inconceivable that Ms Do was unaware of Mr Vu’s involvement in the cultivation of cannabis; and that Mrs Vu’s attitude was to turn a blind eye, or that she too was somehow involved in the cultivation of cannabis. Given the surprising coincidences of the family’s interaction with the cultivation of cannabis, the respondent inferred that there was some deeper family connection in the cultivation of cannabis which went to the seriousness and risk of reoffending.
Counsel for Ms Do strenuously refuted this allegation stating this was not some criminal cartel but an individual—Mr Vu—playing a menial role through naiveté and necessity.
Having regard to all these factors, the respondent argued that there was a real risk of

Mr Vu repeating such conduct upon return to Australia and this consideration must weigh heavily in favour of refusal of his Visa.
Although the Tribunal accepts that Mr Vu’s offending was serious, it is of the view that his risk of reoffending is low and that he has shown genuine remorse for his actions. The Tribunal places weight on the fact that Mr Vu committed a single offence, which was an isolated event, not part of a continuing pattern of offending and which occurred under extraneous circumstances when he was depressed and heavily in debt.
The Tribunal accepts that Ms Do and Mrs Vu have not been convicted or inextricably linked to the cultivation of cannabis in Australia. The loving and supportive environment Mr Vu will share with his partner and children will help ensure that he is not subject to the same pressures he had at the time of offending and will dissuade him from engaging in further criminal conduct. The Tribunal is cognisant that Mr Vu has not adequately explained the current status of his debt to Mr Hung, a debt Mr Vu claimed he had agreed to repay by undertaking the crop sitting as Mr Hung had threatened his family. As Mr Vu now has a partner and child who may be at risk, the Tribunal cannot conclude Mr Vu would not once again be pressured into criminal activity to repay the loan. Whilst there remains a possibility that Mr Vu may be contacted by his former associates, the Tribunal notes the passage of time and acknowledges that there would be very little benefit to him in proactively re-engaging with such individuals; given the grave and knowable consequences of reoffending for his tenancy in Australia.
Additionally, a significant amount of time has lapsed since Mr Vu has offended, in that time he has committed no other offences and taken positive steps in building a stable career and contributing to his community. In the Tribunal’s estimation, Mr Vu does not have a propensity for criminality.
The Tribunal acknowledges that—by virtue of having committed a serious crime—Mr Vu cannot be said to pose no risk to the Australian community. The Tribunal recognises that there is no expert evidence to forensically assess Mr Vu’s risk of reoffending; but—like the delegate—the Tribunal takes the view that Mr Vu has been proactive in his rehabilitation; applied himself to steady employment, helped his community and furthered his education. Additionally the Tribunal notes Mr Vu’s crime was accepted by the Chief Judge as menial and he was sentenced with the aim of rehabilitation. Further, Mr Vu is not a drug user or suffering from violent tendencies therefore the lack of an expert here does not create a significant evidentiary gap. Harm would result if Mr Vu were to re-engage in his past criminal conduct, but such harm cannot be said to be so serious that any risk at all would be unacceptable. The Tribunal finds that there is a very low risk that Mr Vu would reoffend or disregard his visa conditions again; and does not represent an unacceptable risk of future harm to the Australian community or other individuals.
The protection of the Australian community consideration is therefore balanced neutrally in regards to Mr Vu’s visa application.
Best interest of minor children in Australia affected by the decision
Paragraph 11.2 of the Direction relevantly provides that:
(1) Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.
(3) If there are two or more relevant children, the best interest of each child should be given individual consideration to the extent that their interest may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;
c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) Whether there are other persons who already fulfil a parental role in relation to the child;
f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There are two children relevant to this consideration, Mr Vu’s biological son and his future stepdaughter.
Counsel for Ms Do strenuously argued that this consideration weighed heavily in favour of non-refusal of the visa as Mr Vu’s presence was undoubtedly in the minor children’s (who are both very young) best interest. Counsel submitted that the family unit (comprising Mr Vu, Ms Do, their son and Ms Do’s daughter) would be best served by being united in Australia.
Counsel for Ms Do argued that Mr Vu was seeking a long-stay visa so he could create a life for his family in Australia. Counsel stressed that he was not a career criminal seeking to re-enter Australia for financial gain or criminal enterprise; but this was a case of a loving long-term relationship that had developed over nine years, had resulted in a child, and that the Tribunal should weigh this in favour of the applicant.
Counsel for Ms Do further emphasised that Mr Vu’s and Ms Do’s shame and remorse was real, that they were naive of legal matters and previously had difficulty with understanding the system and language in Australia. Counsel for Ms Do asserted that the burning issue here is that Ms Do is a single mother struggling to survive in Australia, who would be better supported in a family unit with Mr Vu. Ms Do firmly believed that a husband is the backbone of the family and that Mr Vu would provide invaluable strength and support in Australia.
Counsel for Ms Do submitted it was in the best interest of Mr Vu’s young biological son to have his father’s physical presence in Australia to help guide and support him through life, and that it was an undeniable fact that a child needs and has a right to have a father in his life. Counsel stressed that boy’s need a male figure in their life to be guided by and that Mr Vu was committed to being a good father to his son. Additionally, Counsel argued that Mr Vu is the dominate father figure in his step-daughter’s life, as she has little or no contact with her biological father and no less weight should be placed on the need of his step-daughter to have a solid family unit established by the presence of Mr Vu in Australia.
Ms Do had indicated during the hearing that Mr Vu understood the sacrifices she had made for him; that he had been seduced into gambling by his friends because he was depressed at the time, and that he will do the best he can for their family. She emphasised that she was struggling both financially and emotionally without him, she was very stressed, had been taking medication to cope and would dearly love the family unit to be united in Australia, particularly for the support and love Mr Vu would provide to their children.
Ms Do advised the Tribunal that Mr Vu is a very responsible person who cares greatly about herself and his children, that he was disappointed he was unable to be in Australia for the birth of his son but he wants to be here to care for and support her. Mr Vu wants to be a positive role model to his son so that he will develop into a good person. His relationship with his step-daughter is very strong and he sees her as his own child and that he is helping raise her daughter as she is getting older and more stubborn.
The respondent argued that their interests should be given individual consideration as to the extent that they differ, submitting that it was in the best interest of Mr Vu’s son that his biological father be allowed to return to Australia. However, the respondent argued that this should be given limited weight as Ms Do had been solely responsible for raising their son thus far. Additionally, the respondent noted that Ms Do and the children had travelled on numerous occasions to visit Mr Vu in Vietnam, and there was no indication this would not take place in the future.

The respondent further conceded non-refusal is presumably in his step-daughter’s best interest as it would provide an additional parental figure in her development; but again contended that this should be given limited weight as her mother was providing her care and both have been able to visit Mr Vu in Vietnam.
The delegate of the Minister, in his reasons for refusal of Mr Vu’s Visa, agreed that it was in the best interests of Mr Vu’s biological child and his stepchild for his visa not to be refused as it would enable him to be with his partner and the children; to provide psychological and emotional support.
It is evident to the Tribunal that it would be in the best interests of Mr Vu’s children for his visa to be granted so he can be united with them in Australia. Whilst Mr Vu has had limited contact with his children in day-to-day care since his return to Vietnam in 2012, this has not undermined or deterred his resolve to be a good father.
The Tribunal notes that if Mr Vu was successful in obtaining a visa to return to Australia, he would no longer be present in his elder son’s life as that child would remain in Vietnam with Mr Vu’s ex-wife. Mr Vu’s evidence to the Tribunal was that his elder son had a good life with his ex-wife and that he has minimal contact with that son. Mr Vu indicated that he would continue to keep in contact via FaceTime and would hope to sponsor him to Australia one day.
The Tribunal did not distinguish between Mr Vu’s son or step daughter finding both minor Australian children would benefit from having a solid stable family unit and father figure in their lives. The Tribunal noted Mr Vu does not play such a role in his son’s life in Vietnam as he has rare visits because of the acrimonious breakdown of his marriage, but wishes to be an ongoing genuine physical presence in his children’s life and they are a driving force for his desire to lead a good productive life. The Tribunal finds that the best interests of

Mr Vu’s children in Australia weigh strongly against refusing to grant his visa.
Expectations of the Australian community
Paragraph 11.3 of the Direction states:
(1) 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 refuse the visa application of such a person. Visa refusal may be appropriate simply because of the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
The delegate found that the character concerns or offences in this case were such that the Australian community would expect the visa application to be refused.
Counsel for Ms Do conceded that the Australian community expected Mr Vu to obey Australian laws whilst here; however, he argued that refusal of the visa was not necessarily appropriate based on the nature of the applicant’s character concerns and his offences. Counsel argued that Mr Vu’s offences were at the lower end of the scale, he had had no repeat offending, a significant period of time had elapsed since his offending and there was no risk he would reoffend again.
Counsel for Ms Do argued that as Mr Vu was seeking a long-stay visa, there was no prospect he would break the law as he was fully aware now of the negative repercussions this would have on himself and his family. Reiterating that the purpose of his intended stay was wholly beneficial to the community as Mr Vu wanted the opportunity to be a good husband and father, to find work to support his family and to see his children educated to become worthy members of the Australian community.
Counsel for Ms Do conceded that Ms Do had also been found guilty of breaching Australian laws but argued this was out of naiveté in trusting others to guide her through a legal process she did not understand and her crime was victimless. She had much shame and remorse at her actions and concern at the negative impact on her partner’s visa application.
Counsel for Ms Do conceded the expectations of the Australian community weighed slightly against the granting of the visa; but argued Mr Vu had learned his lesson and was not now an unacceptable risk to the Australian community.
The respondent argued that Mr Vu had not met the expectations of the Australian community when he was here previously overstaying his visa and became involved in a commercial drug cultivation operation. They argued the Australian community would be concerned about his breaches of trust and the risk of his doing so again, particularly in light of the fact that he proposes to marry someone who has also breached the trust of the Australian community. They argued this consideration falls heavily in favour of refusal.
Fundamentally, the respondent argued that, as a matter of course, refusal of a visa to an individual who had a criminal conviction would be the expectation of the Australian community; as contrasted with a revocation decision where consideration is if the individual with a criminal conviction should be allowed to stay in the country.
The Tribunal notes there is certainly a clear divergence of judicial view in respect of the Australian community’s expectations in respect of cancellation of visas and the subsequent removal of a resident from Australia. As indicated in the matter of Murphy v Minister for Immigration and Border Protection and the case referred to by the respondent, DKXY v Minister for Home Affairs, this factor is not a foregone conclusion in any determination, but one to be assessed on its individual merits.
In Murphy v Minister for Immigration and Border Protection at [58], Senior Member P W Taylor SC wrote:
[58] When cl 13.3 is read as a whole, and applied in a context where all relevant considerations required to be taken into account (see cl 8(1)), it does point to the likelihood, but it does not dictate an inflexible conclusion, that community expectation will always call for non-revocation. Nor is to be taken as elevating community expectation to the status of a determinative consideration. It remains as a primary consideration, to which appropriate weight must be given. But what constitutes appropriate weight, and whether that weight is a determinative factor in the exercise of the revocation discretion, will depend on the totality of the relevant circumstances.
In DKXY v Minister for Home Affairs at [30], Griffiths J stated:
[30] In my respectful view, her Honour's reasoning in [76] and [77] of YNQY would be plainly incorrect if this reasoning is read as stating that the primary consideration of expectations of the Australian community will always weigh against revocation. The Minister contended that the reasoning simply reflected the facts in YNQY and did not purport to be a construction of Direction 65 as suggesting that the expectations of the Australian community can never weigh in favour of an applicant. The difficulty with the Minister's submission is that the language in YNQY at [76] and [77] is not in its terms confined to the circumstances of the particular applicant there and, on one view, appears to have been intended to have a more general application. The ambiguity of the language is reflected in the division of opinion in the large number of decisions of the AAT in which the language has been viewed inconsistently and as supporting either a broad or a narrow approach to cl 13.1.
[31] As the applicant here pointed out, there are numerous statements in Direction No 65 which require the primary consideration of expectations of the Australian community to be assessed in the light of all the relevant circumstances which appertain to it and it has to be weighed against all other relevant considerations (while noting that the Direction requires that primary considerations be given more weight than other considerations). In an appropriate case, and depending upon all relevant circumstances, the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government's view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction, including those which are referred to in [23] above.
[32] I also respectfully disagree with the primary judge's reference at [77] of YNQY that Robertson J's reasons for judgment in Uelese v Minister for Immigration & Border Protection [2016] FCA 348; 248 FCR 296 (Uelese) at [64]-[66] supported her Honour's view that it was "inevitable" that the primary consideration of the expectations of the Australian community would weigh against revocation because that is what this primary consideration is intended to do......
[33] ......... There is nothing in these passages from Uelese which indicates that a primary decision-maker who is bound to apply the Direction cannot also take into account any material which is before the decision-maker which is relevant to an assessment of this primary consideration. The Government's views have to be taken into account and given "due regard", but so must all other circumstances which are relevant in the particular case. As Robertson J pointed out in the final sentence at [64] of Uelese, cl 9.3 of the Direction ends by stating that decision-makers should have "due regard" to the Government's views on Australian community expectations. What amounts to "due regard" will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.
The Tribunal notes the expectations of the Australian community should be assessed from the perspective of a member of the community who held "middle of the road" views on migration matters and who was fully informed of the evidence before the Tribunal. As per the view of Deputy President Block in Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 at [7] in regard to the expectations of the Australian community:
It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into the Australian community, knowledge of the evidence before me. …
Although Deputy President Block was considering an earlier Ministerial Direction, there is little reason why that case does not remain applicable to assessing this consideration under Direction 79.
Finally, it should also be noted that the principles in paragraph 6.3 of the Direction are important in considering the expectations of the Australian community, as they reflect community values and standards (paragraph 6.2(1) of the Direction).
There can be no question that Mr Vu betrayed the trust of the Australian community through his disregard of our laws by overstaying his visa and undertaking criminal activity. The Australian community on the whole wants to give people a second chance and would recognise that Mr Vu has served his time in prison, has been punished for his crimes and has not reoffended since. However, the Australian community also has a low tolerance for people who are involved in the drug trade
The Tribunal finds that the Australian community, fully informed of the circumstances of Mr Vu’s offending and his other circumstances would not have a uniform view on the refusal of his visa. Indeed in this case, none of the other principles of the Direction appear (as the crime was not of a violent or sexual nature, against vulnerable members of the community nor were there repeat offences), prima facie, to weigh significantly one way or the other in relation to this application. Many members of the community may feel Mr Vu had been coerced into a menial role in the cultivation of cannabis; driven there by his depression about the failure of his marriage, which had fuelled his gambling debt and that other members of his community had exploited. Additionally, they would now see that Mr Vu has been a law-abiding citizen fully employed and proactively giving back to his community. Mr Vu’s return to Australia would indeed be an advantage to the community, as he may now be a support to his partner and children; both financially and emotionally. Others would consider that Mr Vu and Ms Do have both breached the trust of the Australian community through their disregard of our laws and their actions have had a significant negative impact upon our community and, as such, Mr Vu should not be awarded the privilege of returning to Australia.
The Tribunal acknowledges that, in accordance with Direction 79, the Australian community expects noncitizens to obey Australian laws whilst in Australia, particularly if they are on a short stay visa. The Tribunal finds this factor weighs in favour of refusing

Mr Vu’s visa, as he had breached the trust of the community and as such should not be given the privilege of returning.
OTHER CONSIDERATIONS
International non-refoulement obligations
Paragraph 12.1 of the Direction provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT) and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
(5) If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making application for another visa, other than a Bridging R (class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending and other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.
This consideration is not relevant as Mr Vu currently resides in Vietnam. Therefore, there are no non-refoulement obligations that need to be observed in this situation.
Impact on family members
Paragraph 12.2 of the Direction provides that the Tribunal must have regard to the:
Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely
It was noted by the delegate in their determination that Mr Vu had immediate family ties to Australia and that his extended family are either citizens or permanent residents of Australia. The refusal of his visa would result in significant hardship on his partner Ms Do. Whilst his mother and brother would be disappointed if his visa was refused, there was no substantial evidence that they would suffer actual hardship.
Counsel for Ms Do argued that this factor weighed heavily in favour of not refusing

Mr Vu’s visa as, undoubtedly, his immediate family in Australia would greatly benefit from his return. Counsel asserted that the minor children would obviously be impacted significantly if their father could not be united with them in Australia, as a viable father figure to both children irrespective of biology. Significantly, his intended wife who was struggling as a single parent would greatly benefit by having Mr Vu here as a financial and emotional support. Counsel stressed that together the family unit was much stronger, and that Mr Vu and Ms Do would be a good influence on each other and would not stray into any further breaches of the law.
Counsel for Ms Do further argued that Mr Vu’s extended family—his mother and brother—would also benefit from his presence in Australia; noting Mrs Vu indicated she would relocate to Melbourne to be closer to her son and grandchildren. Mrs Vu wishes her son to have the benefits of being in Australia and that she would be a positive impact on her son’s life and he would be able to support her in future years.
Mr Vu gave evidence that, if he was not allowed to return to Australia, he did not want his family to relocate to Vietnam as they will have to forfeit too many benefits. That the opportunities in Australia, particularly for the education of his children, were too great and he would not want them to make this sacrifice.
Ms Do advised the Tribunal that she was working hard to bring Mr Vu to Australia because she wanted her children to have a father here; that she wanted her children to live here; she wanted everyone to be here. She particularly wanted her children to be educated here and did not see a future for them in Vietnam.
The respondent conceded that Ms Do would be negatively impacted if Mr Vu’s visa was refused as it is clearly evident she wishes to marry and live with Mr Vu in Australia. They also accepted that the refusal of the visa would have some impact on Mr Vu’s son and step-daughter. Additionally, his mother and brother would undoubtedly be disappointed if he was not allowed to return to Australia; noting he would be living in Melbourne and not Sydney where they currently reside.

The respondent acknowledged that the Tribunal should give the impact on family members some weight in favour of non-refusal of the visa.
Mr Vu’s coming to Australia has significant impact, and it is clearly in his immediate and extended families interest that he be granted a visa. It is evident that Ms Do and the children would greatly benefit from his presence in Australia as he would make a significant contribution to the family, emotionally and help provide financial stability. Therefore, this consideration weighs in favour of non-refusal of his visa.
Impact on victims
Paragraph 12.3 of the Direction provides that the Tribunal must have regard to the:
Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and can be disclosed to the non-citizen being considered for visa refusal
The respondent indicated there was no evidence before the Tribunal concerning the impact on victims and therefore the Tribunal should give no weight to this factor.
Counsel for Mr Vu likewise indicated that there was no discrete victim of Mr Vu’s crime and this factor had no bearing on the Tribunal’s determination. Mr Vu indicated he knew that he was involved in a crime that could impact others for which he was very sorry and ashamed and that he had taken steps to now lead a useful life so he could be a good husband and father.
There is no evidence, one way or the other, that identifies what effect, if any, the refusal of Mr Vu’s visa would have on the victims of his offence. Therefore, the Tribunal finds there would be no impact in a practical sense on the victims and that this consideration has no bearing upon consideration of refusing Mr Vu’s visa.
Impact on Australian business interests
Paragraph 12.4 of the Direction provides that the Tribunal must have regard to the:
Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.
The parties did not lead any evidence in relation to this consideration. While Mr Vu has been consistently employed, predominately as a driver, the Tribunal considers that there would be no impact on the delivery of a major project or an important service in Australia whether his application for a visa was granted or refused.
In light of the absence of evidence to the contrary, the Tribunal finds there will be no impact upon business interests in Australia should Mr Vu’s visa be refused.
CONCLUSION
Many in the community would believe Mr Vu’s visa should not be granted as bestowing him with the privilege of returning to Australia would be egregious, where he has undoubtedly tested the community’s trust. Others apprised of his and his family’s life story would afford him the opportunity to return Australia to provide a better life for himself and his children. Direction 79 rightly indicates that Australia has a low tolerance for criminal conduct by visa applicants, and that there should be no expectation that such people should be allowed to come to Australia. Given the process Mr Vu has gone through, it cannot be said that he has been afforded any such expectation. He has been

required—by the delegate and the Tribunal—to prove his sincerity and rehabilitative efforts. His relationships have been scrutinised and his motives challenged. The key thread that has emerged before the Tribunal is that Mr Vu wants to be a father and husband for his family in Australia; and that he has spent a significant period of time learning from and avoiding the mistakes of his past.
Overall the Tribunal finds that—having regard to all of the primary and other relevant considerations required by the Direction—the correct and preferable decision is to not refuse Mr Vu ’s application for a Prospective Marriage Visa. Mr Vu has undoubtedly committed a serious offence by acting as a crop sitter and has shown a disregard for Australia’s immigration laws by breaching the terms of his visitor visa and residing in the country illegally. The Tribunal takes into account that Mr Vu has committed a single offence, which was not of a violent or sexual nature against women children or vulnerable members of the community, and there is no history of any other ongoing criminal behaviour. His low risk of reoffending and the nature of his crime—and that of his sponsor Ms Do— do not make him an unacceptable risk to the Australian community. Granting
Mr Vu a visa provides him and his Australian family, currently receiving Centrelink benefits, with a more financially and emotionally secure environment. This is particularly critical for the interests and development of his two minor children.
The Tribunal considers the best interests of Mr Vu’s minor children and the impact on his family outweigh his minimal—not unacceptable—risk of reoffending and the expectation that a non-citizen convicted of a serious offence should not be granted a visa.
DECISION
The Tribunal:
(a)sets aside the decision under review, pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act); and
(b) remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to s 43(1)(c)(ii) of the AAT Act, that the discretion in section 501(1) of the Migration Act 1958 be exercised in favor of the Applicant.

I certify that the preceding 147(one hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member.

..........[sgd].........................................
Dated: 2 July 2019

Dates of hearing: 2 and 3 May 2019

Counsel for the Applicant: Mr Phil Cadman

Solicitors for the Applicant: Mr Adewale Oladejo of Vistec Legal

Advocate for the Respondent: Mr Keith Sypott

Solicitors for the Respondent: Australian Government Solicitor

[2019] AATA 1591

2 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

18. COURT	19. COURT DATE	20. OFFENCE	21. COURT RESULT
Melbourne County Court	22. 11 August 2011	23. Cultivate Narcotic Plant Commercial Quantity - Cannabis	24. Imprisonment for 20 months. 11 months of sentence suspended for 2 years

45. COURT	46. COURT DATE	47. OFFENCE	48. COURT RESULT
Melbourne County Court	49. 27 May 2014	50. Obtaining Financial Advantage by Deception	51. Imprisonment for 6 months suspended to be of good behaviour for 12 months

Dates of hearing:	2 and 3 May 2019
Counsel for the Applicant:	Mr Phil Cadman
Solicitors for the Applicant:	Mr Adewale Oladejo of Vistec Legal
Advocate for the Respondent:	Mr Keith Sypott
Solicitors for the Respondent:	Australian Government Solicitor