Doan and Minister for Home Affairs (Migration)
[2019] AATA 169
•18 February 2019
Doan and Minister for Home Affairs (Migration) [2019] AATA 169 (18 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7105
Re:Anh Tung Doan
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Member Tigiilagi Eteuati
Date:18 February 2019
Place:Brisbane
The decision under review is affirmed.
.......................[SGD].................................................
Member Tigiilagi Eteuati
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa under s 501(3A) – Applicant failed to pass the character test - whether there is another reason why cancellation decision should be revoked - application of Direction No. 65 – how expectations of the Australian community are determined– decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection (Migration) [2017] AATA 228
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66
NFLL and Department of Home Affairs (Migration) [2019] AATA 85
Nguyen and Minister for Home Affairs (Migration) [2018] AATA 4637
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary MaterialsDirection No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Tigiilagi Eteuati
BACKGROUND
This is an application by Mr Anh Tung Doan (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister”) made on 26 November 2018 not to revoke, under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), the cancellation of the Applicant’s temporary visa.
The Applicant is a 35 year old citizen of Vietnam who was born in 1983. The Applicant arrived in Australia on a Student (TU 573) visa on 31 December 2013.[1] The Applicant departed and returned to Australia once in 2014 as a holder of the same Student (TU 573) visa. The Applicant was granted a Partner (UK 820) visa on 8 December 2016, which was subsequently cancelled under section 501(3A) of the Act on 30 November 2017. The visa was cancelled on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(c)) as he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment.[2] On 15 December 2017 the Applicant sought that the cancellation decision be revoked.[3] On 26 November 2018 the Minister refused to revoke the cancellation of the Applicant’s visa.[4] On 4 December 2018 the Applicant applied to this Tribunal for review of that decision.
[1] Exhibit G1, page 153.
[2] Exhibit G1, page 10.
[3] Exhibit G1, page 19 and 116.
[4] Exhibit G1, page 79.
The matter was heard on the 6 February 2019. For the reasons below, I have found that the Minister’s decision to refuse to revoke the cancellation of the Applicant’s visa is the correct decision and I have affirmed that decision.
ISSUES
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Section 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) is satisfied in this case.
The two remaining issues are:
(a)Whether the Applicant passes the character test as defined in section 501 of the Act; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that, the Applicant passes the character test or that, there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) is a reason other than that the Applicant passes the character test. The Full Court of the Federal Court has found that there is no residual discretion to be exercised once the Minister (and in this case, the Tribunal) finds that the Applicant passes the character test or there is another reason why the cancellation decision should be revoked. The Full Court has also found that the “reason” in subparagraph 501CA(4)(b)(ii) does not mean “any reason” but rather the determinative reason for revocation arrived at after a balancing of factors both in favour and against revocation.
In Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 the Full Court of the Federal Court (Collier J, with whom Logan and Murphy JJ agreed), after citing with approval the reasons of North ACJ at paragraphs [38] and [39] of his decision in Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166, stated at [31] and [32]:
“I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that “may” in s 501CA(4)(b) means “must”. I consider that this is a correct construction of s 501CA(4)(b).
In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]- [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.”
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked the Tribunal must find in the Applicant’s favour. The appropriate decision in these circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A5 and the documents tendered into evidence by the Respondent and marked as exhibits R1 to R4. The evidence contained in these documents, save for R2, is discussed throughout this decision: see ‘Annexure 1’ to this decision.
I have placed no weight on R2 which is described as “NSW Police Force customised report on the Applicant created 22 January 2019”. Much of that information is irrelevant to the review. Other information contains the NSW Police Force record of contact with the Applicant which the Applicant has not had a proper opportunity to respond to. This includes information potentially relating to offences for which the Applicant has not been convicted and is highly prejudicial.
The Tribunal has, however, considered the evidence of witnesses elicited under cross-examination and in answer to questions from the Tribunal. That includes answers to questions which may have their genesis, at least in part, in the information contained in R2. The Tribunal has relied on the answers to those questions where the Tribunal considered that the relevant information was properly put to the Applicant and that relying on the answers would not be unfair to the Applicant in the circumstances.
The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in sections 500(6H) and (6J). The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least 2 clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.
A summary of evidence of witnesses is provided below from paragraph 33 of these reasons.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6) relevantly provides:
“(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”
Section 501(7) relevantly provides:
“(7) For the purposes of the character test, a person has a substantial criminal record if:…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or”
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Offending history
The sentencing remarks of Whitford J on 21 January 2016 record that the Applicant plead guilty to and was convicted of:[5]
·supplying a prohibited drug and sentenced to 2 years imprisonment with a 16 month non parole period;
·knowingly take part in cultivation of a commercial quantity of cannabis and sentenced to 2 years imprisonment with a 16 month non-parole period; and
·goods in personal custody suspected being stolen and this offence was taken into account in imposing the above sentence.
[5] Exhibit G1, page 94.
The Applicant was sentenced to 4 years imprisonment. As the sentences were to be served concurrently, the total effective sentence was 2 years imprisonment, with a non-parole period of 16 months.
I am satisfied that the Applicant has a substantial criminal record for the purpose of section 501(6)(a), when read with section 501(7)(c) of the Act, as he was sentenced to a term of imprisonment of more than 12 months.
Consequently, I am satisfied that the Applicant does not pass the character test.
The only remaining issue is whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal must comply with any directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to consideration of revocation of a cancellation decision are contained in Part C of the Direction.
Paragraph 13 of the Direction provides for the consideration of three primary considerations. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 14 of the Direction provides for the consideration of other considerations. They include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraphs 8(3) to (5) of the Direction provide:
“(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.”
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation. The principles in paragraph 6.3 are as follows:
1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2)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 the visa.
5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Summary of evidence of witnesses
The following is a summary of the evidence of witnesses who appeared before the Tribunal. The evidence referred to below includes evidence provided in written statements submitted to the Department and the Tribunal, information provided by the Applicant to the psychologists Mr Green, and Mr Watson-Munro and their reports, and evidence given by the witnesses at the hearing in response to questions in cross examination and from the Tribunal.
The Applicant was born in Vietnam in 1983. He lived in Vietnam from that time until he arrived in Australia on Student (TU 573) visa in December 2013.
After completing high school in 2001, the Applicant worked, first for a pest control company, and then in 2002, he worked as a masseur in a massage parlour for about five years. In 2006 he enrolled in a Bachelor of Economy degree at a university in Vietnam. He graduated from that course in 2011. After university he obtained employment in a clerical role with a maritime company. After a year with that company he obtained employment with a second maritime company. The Applicant said that he very much enjoyed working for the second maritime company and hoped to remain with that company on a long-term basis. The Applicant claimed that his work was valued by management and they proposed that he study in Australia to further his education. His employer proposed that they would pay for the Applicant’s tuition in Australia on the proviso that he worked for them for a minimum of five years upon his return to Vietnam. The Applicant said that he told his brother about his employer’s proposal and that his brother advised that he should take up the offer of studying in Australia. His brother was residing in Australia at the time.
The Applicant first arrived in Australia on 31 December 2013 as the holder of a Student (TU 573). The Applicant was enrolled in a Masters degree but could not successfully complete the pre-requisite English-language courses in order to begin a degree course.
The Applicant met his wife in mid-2014. When they met, his wife had a child who was a year old at the time. In November 2011, the couple moved in together. In January 2015, the couple married. Around that time the Applicant ceased his studies in order to take care of his family including by providing financial support. The Applicant indicated that, after he was married, the family had limited financial means and he claimed that he struggled to find ways to make money to support the family. Prior to his arrest on 3 July 2015 the Applicant was working as a tiler, earning $700 a week.
The Applicant said that, through friends, he met some people who offered him money to make deliveries. On 3 July 2015, the Applicant attended a property in Chatswood West, New South Wales, where he removed cannabis from the premises in plastic bags he had brought for that purpose. In a statement dated 10 January 2019, the Applicant claimed that he did not know what he would be delivering until he arrived at the house where he was to pick up the items to be delivered. In his statement the Applicant claimed that he thought that he would be delivering “food or something”. He stated “I did not know that it was illegal drugs until I arrived at the house where I was picking up the goods”. Under cross-examination the Applicant confirmed this evidence. The Respondent’s representative then pointed out that Mr Green’s report indicated that the Applicant had told Mr Green that he had been told, before he attended the house where the drugs were located, that he would be delivering illicit drugs. The Applicant then changed his evidence and admitted that he knew that he would be transporting drugs before he arrived at the house where the drugs were located.
The Applicant was arrested on 3 July 2015 while in the process of delivering the drugs. He was charged with supplying a prohibited drug, knowingly take part in the cultivation of a commercial quantity of cannabis and goods in personal custody suspected of being stolen. The Applicant entered an early plea of guilt in relation to these charges and on 21 January 2016 he was convicted of all three charges. In relation to the offence of supplying a prohibited drug, the Applicant was convicted and sentenced to 2 years imprisonment with a non-parole period of 16 months. In relation to the offence of knowingly take part in the cultivation of a commercial quantity of cannabis, the Applicant was convicted and sentenced to 2 years imprisonment with a non-parole period of 16 months. In relation to the offence of goods in personal custody suspected of being stolen, the Applicant was convicted and it was taken into account in imposing the above sentences of imprisonment. The sentencing judge ordered that the Applicant’s two sentences of imprisonment be served concurrently, giving him an effective sentence of two years imprisonment with a non-parole period of 16 months.
While it is clear from the sentencing judge’s remarks that a non-parole period of 16 months was imposed on the Applicant, it appears that the sentence was incorrectly recorded in the Applicant’s criminal history record where it is recorded that the Applicant had been given an eight month non-parole period. It appears that owing to this mistake, the Applicant was released from criminal detention after eight months in March 2016. The Tribunal notes that the Applicant had been denied bail after his arrest and was in criminal detention between 3 July 2015 and March 2016.
The Applicant claimed that, on release from criminal detention, he was taken into immigration detention where he remained from March 2016 to July 2016 after which time he was released as he was granted a bridging visa. The Applicant indicated that his wife and children visited him regularly during his first period of detention between mid-2015 and mid-2016. The Applicant said that he hadn’t been visited by his wife or children since his detention in November 2017, as his wife and children were in Vietnam from November 2017 until March 2018, and he was moved to immigration detention in Western Australia shortly after his wife and children returned to Australia.
In his statement of 10 January 2019 the Applicant claimed that he was raped by two men in immigration detention in June 2016. It is unclear from the evidence before the Tribunal why the Applicant was taken into immigration detention in March 2016. One can only be lawfully held in immigration detention if one is known to be, or reasonably suspected of being, an unlawful non-citizen, meaning that the person did not hold a valid visa: section 189 of the Act. Presumably, the visa that the Applicant held prior to being detained in immigration detention had expired or was cancelled. In any event, it is not immediately apparent that the reason for his being held in immigration detention is relevant for the purposes of the Tribunal’s decision in the current matter.
The Applicant claimed that he was released from immigration detention in July 2016 and that he remained out of detention, and with his wife and children (his biological daughter was born in December 2015 while the Applicant was in criminal detention), until he was re-detained in criminal detention in November 2017 for breach of the reporting conditions of his parole. The Applicant was granted a Partner (UK 820) visa on 8 December 2016. That visa was cancelled under section 501(3A) on 30 November 2017, while the Applicant was in criminal detention.
The Applicant explained at the hearing that he had not understood that he was required to report to a parole officer and that this was the reason for the breach of his parole conditions. The order revoking the Applicant’s parole was rescinded on 9 January 2018 after the Applicant explained the breach of the reporting conditions of his parole to the New South Wales State Parole Authority.
The Applicant was transferred from criminal detention to immigration detention on 10 January 2018. In April or May 2018, the Applicant was transferred from immigration detention in Sydney to immigration detention in Western Australia. Prior to the hearing, the Applicant had not seen his wife or children in person since November 2017.
The Applicant expressed contrition for his criminal conduct and swore that he would never re-offend. He said that being detained was very difficult for him, especially being separated from his wife and children. He indicated that he desperately wants to re-join his family and accept employment with a family friend, Mr Nguyen, “doing demolition and brick cleaning”.
During cross-examination the Applicant indicated that he considered that his offences were very serious. He said that he had read Vietnamese newspapers which reported on the impacts of cannabis. He said that while he was in criminal detention he had met inmates whose lives have been destroyed by drugs including cannabis. He said that he understood that cannabis caused memory loss and resulted in those who consumed cannabis losing control of their own actions.
The Applicant indicated that his wife had told him that, if his visa was cancelled and he was required to return to Vietnam, she and the children would join him in Vietnam. However, the Applicant said that he wished for his wife and children to remain in Australia as he believed that it was better for the children to grow up in Australia. He said that even if his wife and children joined him in Vietnam, he would try to convince them to return to Australia.
The Tribunal had before it two statements from the Applicant’s wife. The first was an affidavit made by the Applicant’s wife on 20 January 2016 which appears to have been submitted to the District Court of New South Wales prior to the sentencing of the Applicant. The second statement was a statement that the Applicant provided to the Department to support the Applicant’s application for revocation of the cancellation decision.[6] That statement was translated into the English language on 22 October 2018. The Applicant’s wife also gave evidence during the hearing in response to questioning from the Respondent’s representative and the Tribunal.
[6] Exhibit A2.
The Applicant’s wife has pleaded for the Applicant to be given another chance to remain in Australia. She indicated that she and her children desperately missed the Applicant and that, should the Applicant be able to remain in Australia, he would help her raise their children and support their family financially.
The Applicant’s wife indicated that the Applicant treats her elder daughter, his stepdaughter, as his own child.
The Applicant’s wife indicated that the Applicant is a good man and a good husband. She said that she was shocked when she found out about her husband’s offences. She said that her husband committed the offences to help provide for the family financially. She said that her husband was very sorry for his offences and had been greatly affected by his time in prison.
The Applicant’s wife gave evidence that the Applicant was raped in immigration detention in June 2016. The Applicant’s wife gave evidence that, after the Applicant was released from immigration detention in mid-2016, the assault had a profound impact on the Applicant psychologically. She described the Applicant as being “mentally ill” as a result of the attack. She said that he did not seek employment during the period of his release, between mid-2016 and November 2017, because he was in no state to work or to be around others. She said that the Applicant was highly depressed. She said that, after his release from immigration detention, he was no longer himself; that he would talk to himself and made comments indicating that he wanted to commit suicide. The Applicant’s wife said that the Applicant was institutionalised on two occasions on account of his psychological state. She said that the Applicant would become paranoid, believing that she was trying to drug him. The Applicant’s wife indicated that the Applicant could not control his temper or look after himself. The Applicant’s wife said that, to make matters worse, she and their younger child were injured in a car accident in 2016. She said that while she was living with the Applicant at the time, he was ‘sick’ and she had to look after the children by herself following the accident.
The Applicant’s wife said that both she and the children needed the Applicant. She said that both she and her children dearly missed and loved the Applicant. She said that she and the children were surviving on Centrelink benefits and occasional financial assistance from the Applicant’s family in Vietnam. She said that, if her husband were allowed to remain in Australia, he could get a job to assist the family financially.
The Applicant’s wife admitted that, during the Applicant’s first period of detention, she had told him that, if his visa was cancelled and he had to return to Vietnam, she and the children would return there with him. The Applicant’s wife said that she told the Applicant this to keep the Applicant’s spirits high as he was very depressed at the time.
The Applicant’s wife said that, if the Applicant has to return to Vietnam, she will remain in Australia with the children as she considers that Australia offers them a better life and opportunities than are available for them in Vietnam. She said that, if the Applicant’s visa remains cancelled, it would be difficult, if not impossible, for her and the children to visit the Applicant in Vietnam as they would not be able to afford to do so.
The Tribunal received a statement,[7] and heard oral evidence from a Mr Nguyen, a family friend of the Applicant. Mr Nguyen indicated that he had offered the Applicant a full-time position as a cashier with his business.
[7] Exhibit A3.
At the hearing, Mr Nguyen indicated that two or three months ago, the Applicant’s wife had contacted him by telephone, indicating that the Applicant needed to have an offer of employment in order to bolster his chances of being able to remain in Australia. Mr Nguyen said that he told the Applicant’s wife that he was willing to offer the Applicant a position with his company. He told the Tribunal that he made the employment offer for two reasons. First, it gave him the opportunity to help a family friend in need. Secondly, he said that he had been searching unsuccessfully for someone whom he could trust with money to work as a cashier in his business.
It was raised with Mr Nguyen that he had indicated that he had offered the Applicant employment as a cashier, whereas the Applicant had given evidence that Mr Nguyen had offered him a job “doing demolition and brick cleaning.” Mr Nguyen admitted that he had not had a detailed conversation with the Applicant outlining the nature of the proposed employment or the conditions of the proposed employment.
The Tribunal had before it a psychological report regarding the Applicant from a Mr Tim Watson-Munro.[8] In his report Mr Watson-Munro said the following in relation to the Applicant’s potential for recidivism:
“I note you seek my views regarding the potential for recidivism in this case. Mr Doan has no prior forensics history and it would appear that his criminality, although serious was considered by the Honourable Sentencing Judge to be collateral rather than at a higher level of organisation.
Mr Doan has positive aspirations for the future in terms of employment and caring for his family. I discussed the benefits of him undertaking treatment in the community should he be permitted to remain in Australia. He embraced this idea and I would be happy to refer him to a suitably qualified clinician subject to the outcome of his hearing. Treatment should involve a Cognitive Behaviour Therapy model focused upon social skills training, systematic desensitisation for his anxiety, as well as supportive and motivational psychotherapy. I note that he has no involvement with illicit drugs and does not abuse alcohol, which in my opinion further optimises the likelihood of a positive prognosis characterised by an absence of further offending. Arising from these issues, I believe the risk of recidivism in this case is low.”
[8] Exhibit A4.
During the hearing Mr Watson-Munro indicated that in addition to the matters identified in his report, there were additional reasons why he thought that the applicant’s risk of reoffending was low. They included the applicant’s general history, the support from his family, the strong bond with his daughter and stepdaughter, the desire to assist the family, and the experience of having been incarcerated.
Mr Watson-Munro indicated that that while he had not seen Mr Green’s pre-sentencing report, had he assessed the applicant prior to sentencing, he would have reached the same conclusion as Mr Green, that the applicant presented a “low to moderate” risk of reoffending. He said that, since the time when Mr Green’s report was made, the bonds between the applicant and his wife and children had strengthened, that he had matured and gained some insight into the consequences of future offending. Mr Watson-Munro concluded that, because of the applicant’s progression since Mr Green’s report, he now maintained that in his view the applicant presented a “low” risk of reoffending.
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction provides that decision makers should 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, 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;
(c)The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e)The cumulative effect of repeated offending;
(f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour); and
(h)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the noncitizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act
The sentencing remarks of Whitford J on 21 January 2016 record that the Applicant plead guilty to and was convicted of:
supplying a prohibited drug and sentenced to 2 years imprisonment with a 16 month non-parole period;
knowingly take part in cultivation of a commercial quantity of cannabis and sentenced to 2 years imprisonment with a 16 month non-parole period; and
goods in personal custody suspected being stolen and this offence was taken into account in imposing the above sentence.
The nature of the Applicant’s offending was described by the sentencing judge as follows:[9]
“The seriousness of each of the offences for which Mr Doan stands to be sentenced is reflected in the maximum penalty which Parliament has prescribed for each, the offence of supply of prohibited drug carries a maximum penalty of 10 years imprisonment and the offence of knowing participation in the cultivation of a commercial quantity of cannabis carries a maximum penalty of 15 years imprisonment.
…
A fair analysis of the agreed facts leads to the conclusion that the offender Doan visited the premises on one occasion only and that he knowingly took part in the cultivation of the cannabis by removing the product from the premises and providing plastic bags for that purpose. Accordingly I accept the submission made on behalf of Mr Doan that his role was very limited and towards the bottom of any hierarchy of whatever organisation lay behind the enterprise reflected in the outfit at Fullers Road.
In respect of the second offence to which Mr Doan has pleaded guilty, the offence of supply as I have indicated the acts relied upon in respect of the offence of knowing participation in the cultivation are essentially the same acts that support the offence of supply. Again all the evidence supports the conclusion that his offending was an isolated act engaged in at what might sensibly be described as the bottom of the hierarchy of any organisation that stands behind the enterprise. Some of the matters that support the conclusion as to the minimal involvement of the offender Doan in any chain of supply are the fact that no significant assets were seized following his arrest. There is no evidence the van driven by him was owned by him. He was apparently acting at the direction of an unidentified co-offender. Whilst no doubt intended for dissemination in the community it can at least be noted that the drugs the subject of the supply charge were not disseminated into the community through the intervention of the police. Consideration that I am permitted to take into account in the offender’s favour on sentence.
The motivation for the offending conduct appears from all of the evidence to have been motivated by a degree of financial desperation or as described in the written submissions on Mr Doan’s behalf, necessity rather than a motivation of unfettered greed.”
[9] Exhibit G1, page 94.
The sentencing judge, in coming to a sentence, took into account that the Applicant was a foreign national and that his incarceration would be more burdensome than it otherwise might be, in particular because of his difficulties with the English language and that it would be likely, if not inevitable, that he would be deported leading to further isolation from his wife and children.
The sentencing judge also indicated that the Applicant was entitled to a discount of 25% on the sentences imposed for each of the offences because of his early plea of guilt.
In relation to the Applicant’s prospects of rehabilitation the sentencing judge said:[10]
“In the interview with the psychologist Mr Doan demonstrated insight into the nature of his offending conduct and its broader societal consequences and as I have already indicated, expressed his remorse for his offending. The psychologist opined that at the time of the offending Mr Doan was under a high level of stress and very worried about his financial situation and the need to provide for his wife and children. He was assessed by the psychologist as having a low to moderate risk of reoffending. The main risk of reoffending apparently being if he finds himself in financial difficulty and unable to provide for his family. Mr Doan’s educational and employment history and the support he has of his wife and the fact that he is motivated to provide for her and his children seem to me all to point reasonably well to a conclusion that Mr Doan’s prospects of rehabilitation are good.”
[10] Exhibit G1, page 94.
The offences which the Applicant has committed can not be described as violent or sexual crimes. The offences were not committed against vulnerable members of society or government officials or representatives. The Applicant was sentenced to 4 years imprisonment with an effective sentence of 2 years with a non-parole period of 16 months. The Applicant’s offences all relate to activity on 3 July 2015. There has been no-repeat offending. It does not appear that the Applicant has provided false or misleading information to the Department such as to justify any significant increase in an assessment of the seriousness of the offending or its nature. The Applicant has not sought to hide his criminal offending from the Department. He has not re-offended since being formally warned by the Department and the offences were not committed while the Applicant was in immigration detention or during or after an escape from immigration detention.
The Applicant’s representative cited criminal cases dealing with sentencing which indicate that, for the purpose of determining a sentence, it is unhelpful to differentiate between the seriousness and harmfulness of individual drugs any further than has been done so by the legislature. Rather, that the best guide in sentencing is that given by the legislature as to the available penalty. Factors such as the quantity of the drug and the level of involvement of the perpetrator are relevant to the sentence imposed.
The Tribunal does not take issue with any of these principles insofar as they relate to courts imposing sentences for drug-related crimes. Indeed, this Tribunal has commented on the appropriateness of relying, at least in significant part, on the fact that Parliament has proscribed dealing with illicit drugs and the penalties imposed by the legislature for such crimes, in determining the seriousness of drug-related offences. In Nguyen and Minister for Home Affairs (Migration) [2018] AATA 4637, Deputy President Forgie stated at [53]:
“I recognise that there are differing views held by members of the Australian community regarding the use of cannabis but this is not a case in which I can have regard to those differing views. Parliament has created an offence of cultivating a narcotic plant in a commercial quantity. It has set a maximum penalty of 25 years imprisonment. In doing so, Parliament will have had regard to various policy issues relating to matters such as law enforcement and private and public health, but it is its prescription of certain acts or omissions as crimes that make them so and the way in which the community regards the morality of those acts or omissions becomes of no relevance. This was explained by Lord Atkin in Proprietary Articles Trade Association v Attorney-General for Canada[11]:
“Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State. The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences? Morality and criminality are far from coextensive; nor is the sphere of criminality necessarily part of a more extensive field covered by morality - unless the moral code necessarily disapproves all acts prohibited by the State, in which case the argument moves in a circle. ...”
[11] [1931] AC 310 at 324.
In any event, the Applicant has conceded that the offences for which he was convicted are serious. The Applicant characterises his criminal conduct as “a low level example of a serious offence.” Upon comparing the sentences imposed on the Applicant relative to the maximum sentences available, and especially considering the sentencing judge’s comments in relation to the seriousness and nature of the offending, the Tribunal accepts this characterisation.
Nonetheless, the Tribunal is of the view that the Applicant’s offending conduct was serious and the nature of the conduct involved the supply of a prohibited drug and cultivation of a commercial quantity of cannabis in the manner described by the sentencing judge.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) of the Direction provides that a decision-maker 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. Paragraph 13.1.2(1) of the Direction provides that some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
In considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 13.1.2(2) of the Direction cumulatively. They are:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct.
In his written contentions, the Applicant argues that in relation to the sub-consideration, the Applicant does not have the wherewithal to cause prohibited drugs to make their way to members of the Australian community. He argues the Applicant was a small, easily replaceable cog in a much larger criminal enterprise and that it was “too remote to suggest that the Applicant might, directly or indirectly, cause harm to the Australian community because of this conduct.”
Secondly, the Applicant had argued that there was no evidence of what, if any, harm might be caused to the Australian community if the Applicant reoffended in a similar manner.
As to the first argument, the Tribunal does not accept that the Applicant did not have the wherewithal to cause prohibited drugs to make their way to members of the Australian community. He was an integral part of an operation to do just that in the past and it appears that, had he not been apprehended by police, the drugs that he was transporting may well have been distributed through the Australian community.
The Applicant’s reference to being a small, easily replaceable cog, does not take his case any further. Even small replaceable cogs are a necessary part of the machinery of a larger drug producing and supplying enterprise. The machinery does not work without small replaceable cogs. If the Applicant were to involve himself in a drug enterprise in the future, he would be aiding in the provision of prohibited drugs to the Australian community.
In relation to the second argument, that there was no evidence as to what, if any, harm might be caused to the Australian community if the Applicant reoffended in a similar manner, the Tribunal makes the following observations.
In many cases the harm to the Australian community or members of the Australian community should an Applicant reoffend in a similar manner will be obvious. This is especially so if an Applicant has previously committed violent offences. For example, if an Applicant has previously been convicted for assault occasioning actual bodily harm and he were to reoffend in a similar manner, the result would be that another member of the Australian community would be inflicted with actual bodily harm.
However, in a case such as the present it will not always be immediately apparent what the harm to the Australian community, or individual community members, may be as a result of future offending. In such cases it will often be insufficient for the Respondent to simply assert harm in his written contentions without providing any evidence to support those assertions. Whereas in some cases harm to the community will be obvious, and in others it may be appropriate, although not ideal, for Tribunal members to, in effect, take judicial notice of commonly accepted matters, in cases such as this one dealing with the potential impact of cannabis on the community, it will often be necessary for the Respondent to adduce evidence of any potential claimed harm in order for the Tribunal to properly address this sub-consideration.
In the present case, the Respondent has provided evidence of the effects of cannabis. When the Respondent filed his written submissions, attached to the submissions was a web report entitled “Alcohol, tobacco and other drugs in Australia” produced by the Australian Institute of Health And Welfare.[12]
[12] Exhibit R1.
The report identifies the long-term effects of cannabis as including: physical dependence, upper respiratory tract cancers, chronic bronchitis and permanent damage to airways, cardiovascular system damage, mental health symptoms including depression and poor adolescent psychosocial development. The report identifies that cannabis was the second most common drug identified at toxicology for transport accident deaths and that the short-term effects of cannabis can increase the risk of road traffic crashes, largely due to diminished driving performance in response to emergencies.
In response to the Respondent’s submissions including the web report, the Applicant provided an article entitled “Estimating drug harms: a risky business?” written by Professor David Nutt.[13]
[13] Exhibit A5.
In oral submissions, the Applicant argued that the relevance of Professor Nutt’s article was, to quote Professor Nutt, “the whole process of determining drug classification has become complex and highly politicised.” The Applicant’s representative said “the scientists don’t think that cannabis is such a dangerous drug.” The Applicant did not contend that cannabis was not harmful and indeed stated that Professor Nutt claimed cannabis was a harmful drug.
Instead, the Applicant argued that the classification of illicit drugs and the penalties imposed for dealing with illicit drugs do not necessarily reflect the seriousness of the consequences of drug use and have in fact been highly politicised.
Based on the evidence before the Tribunal, the Tribunal finds that, if the Applicant were to re-engage in similar criminal conduct, it is likely that harm would come to members of the Australian community through the use of cannabis. That harm might include physical dependence, upper respiratory tract cancers, chronic bronchitis and permanent damage to airways, cardiovascular system damage, mental health symptoms including depression and poor adolescent psychosocial development. The harm caused by cannabis as a result of the any future efforts by the Applicant to supply cannabis to the community may also include injury or death as a result of car accidents.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
In relation to this sub-consideration, the Applicant argues that he is highly unlikely to reoffend. The Applicant relies on the sentencing judge’s remarks that the Applicant’s “prospects of rehabilitation are good” despite the conclusions of Mr Green, the psychologist who provided a report prior to sentencing, that the Applicant presented a “low to moderate” risk of reoffending.[14]
[14] Exhibit R4.
The Applicant also relied on the report of psychologist Mr Watson-Munro who concluded that the risk of recidivism regarding the Applicant was “low”.
Finally, the Applicant indicated that the Department had decided not to cancel the Applicant’s bridging visa, and had granted him a Partner (UK 820) visa, after he had been convicted of offending. This was said to show that the Respondent had formed the view, at least twice previously, that the Applicant did not present a risk of harm to the Australian community.
The Respondent relied on the assessment of Mr Green that the Applicant presented a “low to moderate” risk of reoffending. The Respondent noted that Mr Green identified the main risk of reoffending was if the Applicant found himself in financial difficulty and unable to provide for his family.
The Respondent indicated that the Applicant had not undergone any rehabilitative treatment, nor had he identified how he proposed to deal with any financial pressure in the future without resorting to criminal conduct.
The Respondent also indicated that, as the Applicant had been in either criminal or immigration detention between mid-2015 and mid-2016, and then from November 2017 until present, the Applicant had not been in an unsupervised environment within the community for very long and there was a real possibility that the Applicant may reoffend.
While Mr Green was unavailable for questioning, Mr Watson-Munro gave evidence by telephone and was cross-examined by the Minister’s representative.
In his report Mr Watson-Munro provided three express bases for his assessment that the Applicant presented a low risk of reoffending. The first was that he had positive aspirations for the future in terms of employment and caring for his family. Secondly, that he displayed a willingness to undergo treatment in the future, and thirdly, that he had no involvement with illicit drugs and did not abuse alcohol.
During the hearing Mr Watson-Munro indicated that, in addition to these three matters, there were additional reasons why he thought that the Applicant’s risk of reoffending was low. They included the Applicant’s general history, the support from his family, the strong bond with his daughter and stepdaughter, the desire to assist the family, and the experience of having been incarcerated.
Mr Watson-Munro indicated that, had he assessed the Applicant prior to sentencing, he would have reached the same conclusion as Mr Green, that the Applicant presented a “low to moderate” risk of reoffending. He said that, since Mr Green made his report in January 2016, the bonds between the Applicant and his wife and children had strengthened, that he had matured and gained some insight into the consequences of future offending. Mr Watson-Munro concluded that, because of the Applicant’s progression since Mr Green’s report, he now maintained that in his view the Applicant presented a “low” risk of reoffending.
The Tribunal considers that there are certain elements in the report and evidence of Mr Watson-Munro which may lead the Tribunal to prefer the report of Mr Green. For example, Mr Green spent almost 3 times as much time with the Applicant as did Mr Watson-Munro. Mr Green’s report is far more detailed than that of Mr Watson-Munro especially in terms of the factual circumstances discussed in the reports. Further, Mr Green’s report tends to better reflect the evidence that the Applicant has provided to the Tribunal and the evidence that is before the Tribunal. For example, Mr Watson-Munro indicated that the Applicant completed a Masters degree and that this indicated intelligence, accomplishment, focus and motivation and suggested that these traits may be relevant to an assessment of the Applicant’s risk of reoffending. However, it was clear from the evidence that, while the Applicant had originally come to Australia to eventually complete a Masters degree, he could not pass the pre-requisite English-language courses and therefore never began the Masters degree course. This was accurately reflected in Mr Green’s report.
Mr Watson-Munro acknowledged that, if the Applicant had provided him with false information, this may affect his assessment of the Applicant’s risk of reoffending. Presumably the same could be said if the Applicant had been truthful but Mr Watson-Munro had misunderstood the Applicant’s claims.
These concerns with Mr Watson-Munro’s report raise the question as to how confident the Tribunal can be in relying on his ultimate assessment that the Applicant presents a low risk of reoffending, especially where his assessment differs from the final assessment of Mr Green which was a more detailed and factually accurate report indicating that the risk of reoffending to be “low to moderate.”
However, the Tribunal has also placed weight on Mr Watson-Munro’s assessment that the passing of time since Mr Green’s report, the development of stronger ties between the Applicant and his immediate family members, that the Applicant has matured and developed insight into his offending and the effects of detention have meant that Mr Green’s assessment, made before sentencing, may now be unreliable.
A further complicating matter in this case is that the Applicant gave evidence that he was sexually assaulted in June 2016 while he was detained in immigration detention. The Applicant’s wife gave evidence (after Mr Watson-Munro had been excused) that, after the Applicant was released from immigration detention in mid-2016, the assaults had a profound impact on the Applicant psychologically. She described the Applicant as being “mentally ill” as a result of the attack. She said that he did not seek employment during the period of his release between mid-2016 and November 2017 because he was in no state to work or be around others. The Applicant’s wife said that the Applicant was highly depressed. She said that after his release from immigration detention, he was no longer himself; that he would talk to himself and made comments indicating that he wanted to commit suicide. She said that he was institutionalised on two occasions in relation to his psychological state. The Applicant’s wife said that the Applicant would become paranoid, believing that she was trying to drug him. The Applicant’s wife indicated that the Applicant could not control his temper or look after himself. The Tribunal accepts the Applicant’s wife’s evidence about the effect of the alleged attack on the Applicant.
While it is apparent that the Applicant’s most recent statement indicates that he was raped while in immigration detention in June 2016, and that this statement was before Mr Watson-Munro, the statement does not contain any detailed evidence about the effect of the alleged sexual assault on the Applicant. As such, it does not appear that Mr Watson-Munro’s report deals with the psychological difficulties that the Applicant faced as a result of the alleged attack upon him. Importantly, the report does not deal with what, if any, effect those psychological difficulties had on the assessment of his risk of reoffending.
The Tribunal recognises that Mr Watson-Munro considered that stable employment would reduce the chances of the Applicant reoffending. The Tribunal received a statement and heard oral evidence from a Mr Nguyen, a family friend of the Applicant who indicated that he had offered the Applicant a full-time position with his business as a cashier. Mr Nguyen’s statement appears to have been made on 12 January 2019, but surprisingly, is not referred to in Mr Watson-Munro’s report of 30 January 2019 (again emphasising the concerns raised by the Tribunal about Mr Watson-Munro’s report).
At the hearing, Mr Nguyen indicated that two or three months ago, the Applicant’s wife had contacted him by telephone, indicating that the Applicant needed to have an offer of employment in order to bolster his chances of being able to remain in Australia. Mr Nguyen said that he told the Applicant’s wife that he was willing to offer the Applicant a position with his company. He told the Tribunal that he made the employment offer for two reasons. First, it gave him the opportunity to help a family friend in need. Secondly, he said that he had been searching unsuccessfully for someone whom he could trust with money to work as a cashier in his business.
It was raised with Mr Nguyen that he had indicated that he had offered the Applicant employment as a cashier whereas the Applicant had given evidence that Mr Nguyen had offered him a job “doing demolition and brick cleaning.” Mr Nguyen admitted that he had not had a detailed conversation with the Applicant outlining the nature of the proposed employment or the conditions of the proposed employment.
The Tribunal has also considered the effect of non-revocation on the Applicant under this consideration. If it had not, the Tribunal would have considered the effect on the Applicant, other than as regards to non-refoulement and impediments upon return, separately as an “other” consideration. The Tribunal considers that the non-revocation of the cancellation decision would have a significant negative effect on the Applicant. The Applicant would be permanently separated from his wife and children and the love and support they could provide him while living with him. The Applicant will lose the chance to live with his children as they grow up.
The Tribunal has also considered the principle in paragraph 6.3(6) of the Direction 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.
It is important to observe that the Applicant held a Partner (UK 820) visa, which is a temporary visa, prior to the cancellation of his visa. That is important, in relation to his ties to Australia and the effect on him and his immediate family members, as there was no guarantee that the Applicant would be allowed to remain permanently in Australia even had his visa not been cancelled. Even if the Tribunal were to revoke the cancellation of the Applicant’s visa, it would appear that there is a good chance that the Applicant would not be granted a Partner (BS 801) permanent visa (for which he has applied) because he fails to pass the character test.
While the Tribunal has found that non-revocation of the cancellation decision would have a significant negative effect on the Applicant, his immediate family and in particular his wife, the Tribunal has placed less weight on this consideration than it otherwise might as the Applicant began offending a year and a half after arriving in Australia which the Tribunal considers to be quite soon after arriving in Australia.
Similarly, the Tribunal has placed some weight on the time that the Applicant was working and studying in the community prior to offending, when he could be said to be positively contributing to the community. However, as this was for a relatively short period of time, the Tribunal places low weight on this in the Applicant’s favour.
Overall, the Tribunal finds that this consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa. The Tribunal places moderate weight on this consideration in the Applicant’s favour.
(c) Impact on Australian business interests
Neither party has argued that this consideration is relevant in the current matter. While Mr Nguyen indicated that the Applicant would be an asset to his business, especially as someone that he could trust with money, as mentioned above, the Tribunal has concerns about the sustainability of any employment that the Applicant would undertake with Mr Nguyen. In the circumstances the Tribunal places no weight on this consideration.
(d) Impact on victims
The Applicant argues that this consideration does not weigh against the Applicant as the Applicant’s part in supplying cannabis to the community was foiled by the police when they apprehended the Applicant and seized the cannabis. The Tribunal agrees with the Applicant that a consideration of the impacts on victims does not arise in this case.
(e) Extent of impediments if removed
The Applicant did not directly address the Tribunal either in his written submissions or orally in relation to this consideration.
The Respondent contended that, while the Applicant may face some difficulty in re-establishing himself in Vietnam, there is no evidence that any hardship would be insurmountable. The Respondent submitted that, as the Applicant lived in Vietnam for 30 years prior to arriving in Australia, there were no language or cultural barriers for the Applicant to overcome should he return to Vietnam. The Respondent asserted that, as a citizen of Vietnam, the Applicant had the same access to social and economic support as other citizens. The Respondent contended that this consideration does not weigh in favour of revocation and is neutral.
The Tribunal finds that the Applicant would not face any cultural or language barriers if he were to return to Vietnam. He lived there for the first 30 years of his life. The majority of the Applicant’s family members remain in Vietnam. There is no evidence before the Tribunal as to whether the Applicant would be likely to receive any support from the Vietnamese government.
The Tribunal observes that the Applicant appears to have been gainfully employed in Vietnam in the past and that this augurs well for his prospects of employment in the future, as does his Bachelors degree attained in Vietnam.
The Tribunal has some concerns as to the current state of the Applicant’s mental health given the evidence of the Applicant’s wife that he has been mentally troubled since the alleged attack on him in immigration detention in 2016. Again, there is no evidence before the Tribunal as to the availability of appropriate mental health treatment in Vietnam.
Considering these matters, the Tribunal finds that the Applicant will face difficulty in re-establishing himself in Vietnam. However, he will be aided by the fact that he has a good history of employment in Vietnam, has a Bachelors degree attained in Vietnam and is familiar with the language and culture.
The Tribunal finds that this consideration weighs in favour of revocation. The Tribunal attributes low weight to this consideration in the Applicant’s favour.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
The Tribunal considers that this is a difficult case to decide. The Tribunal has found that the primary consideration of the protection of the Australian community weighs significantly against revocation of visa cancellation. Similarly, the Tribunal has found that the primary consideration of the expectations of the Australian community weighs moderately against revocation of visa cancellation. The Tribunal has found that the Applicant’s offences were serious, that there would be harm to the Australian community or to members of the community if they were repeated and that there is a not insignificant risk that the Applicant will re-offend. The Tribunal has also found that the Australian community would expect that the Tribunal not revoke cancellation of the Applicant’s visa, especially in circumstances where the Applicant held a visa to remain temporarily in Australia, notwithstanding the harm to the Applicant’s wife and children that non-revocation would cause.
On the other hand, the Tribunal has found that the primary consideration of the best interests of minor children, in this case, each of the Applicant’s children, weighs significantly in favour of revocation of the cancellation decision. The Tribunal has found that each of the children would be significantly adversely affected if the cancellation decision is not revoked and that it is in the best interests of each child that the Tribunal revoke cancellation. In addition, the Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed moderate weight to this consideration. The Tribunal has found that both the Applicant and his wife will be significantly adversely affected if the cancellation decision is not revoked. Finally, the Tribunal has found that the consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation decision and attributed low weight to this consideration.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant’s favour.
The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the cancellation decision should be revoked.
Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse to revoke the decision to cancel the Applicant’s visa, is the correct decision.
DECISION
The decision under review is affirmed.
I certify that the preceding 254 (two hundred and fifty-four) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati
.....................[SGD]..................................................
Associate
Dated: 18 February 2019
Date of hearing:
6 February 2019
Counsel for the Applicant:
Solicitors for the Applicant:
Mr Nicholas Poynder
Northam & Associates
Solicitor for the Respondent:
Sparke Helmore Lawyers
‘Annexure 1 – Exhibit Register’
Exhibit Number
Description
A1
Statement from Anh Tung Doan dated 06 February 2019
A2
Affidavit of Thi My Hien Luong dated 20 January 2016
A3
Letter from Giang Son Nguyen dated 12 January 2019
A4
Psychologist Report of Mr Tim Watson-Munro dated 30 January 2019 and Curriculum Vitae
A5
Professor David Nutt’s paper titled ‘Estimating drug harms: a risky business?’ published October 2009
G1
Section 501G Documents (page 1-186)
R1
Australian Institute of Health and Welfare web report titled ‘Alcohol, tobacco & other drugs in Australia’ last updated 13 December 2018
R2
NSW Police Force customised report on the Applicant created 22 January 2019
R3
Crown Sentence Summary of the Applicant dated 10 November 2015
R4
Psychologist Report of Mr David Green dated 17 January 2016
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