DVDP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 4671

DVDP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4671 (23 November 2020)

Division:GENERAL DIVISION

File Number(s):      2020/5414

Re:DVDP

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:23 November 2020

Place:Sydney

The decision under review is affirmed.

..........................[SGD]..............................................

Senior Member A Poljak

CATCHWORDS

MIGRATION – non-revocation of mandatory cancellation of Return (Residence) (Class BB) Subclass 155 – Five Year Resident Return visa – citizen of Vietnam – where visa mandatorily cancelled under s 501(3A) because applicant did not pass character test – substantial criminal record – reckless wounding in company – affray – whether there is another reason why the original decision should be revoked – Direction No. 79 – primary considerations – protection of the Australian community – expectations of the Australian community – other considerations – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 499, 501, 501CA

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member A Poljak

23 November 2020

1. Mr DVDP, the applicant, is a citizen of Vietnam. He was granted an Orphan Relative visa on 30 November 2007 and arrived in Australia with his four siblings on 7 December 2007. The applicant and his siblings initially lived with their grandmother and uncle however, due to child welfare concerns, they became subject to Child Protection Orders and lived separately in foster care until reaching the age of 16 years.

2. On 19 September 2014, the applicant was granted a Return (Residence) (Class BB) Subclass 155 – Five Year Resident Return visa (visa) and travelled to Vietnam for periods of about three and four weeks in 2014 and 2015.

3. On 23 April 2018, the applicant was convicted by the Parramatta District Court of reckless wounding in company and affray (the offences). For the offences, the applicant was sentenced to an aggregate term of imprisonment of 2 years and 9 months, with a non-parole period of 1 year and 10 months.

4. On 29 January 2019, the applicant’s visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) (mandatory cancellation decision). The applicant sought revocation of the mandatory cancellation decision. On 28 August 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) decided not to revoke the mandatory cancellation decision. This is the decision under review in these proceedings.

   Relevant legislative provisions

5. Subsection 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of paragraphs 501(6)(a) and (7)(c).

6. Subsection 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a “substantial criminal record” as defined by subsection 501(7). Paragraph 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

7. Subsection 501CA(4) of the Act provides that the Minister may revoke the original decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked. This is a discretionary power.

8. A decision under subsection 501CA(4) of the Act involves an assessment and evaluation of the factors for and against revoking the mandatory cancellation decision. A determination under subsection 501CA(4) must be carried out in accordance with any written directions given by the Minister under the Act: subsection 499(2A).

9. The Minister has made such written directions under subsection 499(1) of the Act, in the form of “Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction No. 79). Therefore, in making a determination under subsection 501CA(4) of the Act, the decision-maker must comply with Direction No. 79.

   THE CHARACTER TEST

10. It is not in dispute that the applicant fails the character test under paragraph 501(6)(a) of the Act. The applicant has a substantial criminal record as defined by paragraph 501(7)(c) of the Act.

    DIRECTION NO. 79

    11.Direction No. 79 provides that the decision is to be approached within the framework of the Principles in paragraph 6.3 (Principles). These Principles are:

    (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or  vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

    12.Informed by the Principles, the decision-maker must have regard to Part C of Direction No. 79, which identifies the relevant considerations for determining whether to exercise the discretion to revoke the mandatory cancellation decision. Paragraph 13(2) 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; and

    (c)expectations of the Australian community.

11. The decision-maker must also consider other considerations insofar as they are relevant. Paragraph 14(1) states that these 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.

    PRIMARY CONSIDERATION (A) – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

12. In determining this primary consideration, I note that I must have regard to the matters set out in paragraph 13.1 of Direction No. 79, namely:

    (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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…

    (2)  Decision-makers should also give consideration to: 

    (a)The nature and seriousness of the non-citizen’s conduct to date; and

    (b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    (a) The nature and seriousness of the applicant's conduct to date

13. Paragraph 13.1.1(1) of Direction No. 79 provides that in considering the nature and seriousness of the applicant’s criminal offending or other conduct to date, a decision-maker must have regard to several factors, relevantly in this matter:

    (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)…;

    (c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled) … 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;

14. The nature of the applicant’s offences should be viewed very seriously as they involved violence against a vulnerable victim.

15. In sentencing remarks, Judge Craigie SC of the District Court of New South Wales detailed the facts in relation to the offences committed by the applicant on 28 May 2016 as they unfolded at trial and as reflected in an Agreed Statement of Facts tendered on sentence and signed by the applicant; having been read to him and countersigned by a Vietnamese interpreter. The sentencing comments disclose that the applicant was a co-accused with three of his siblings. They had reacted to a perceived threat and insult directed towards their younger sister.

16. Judge Craigie SC found, after reviewing the available CCTV footage of the offences, that the applicant’s action of stabbing the victim was an intended action to make contact, although reckless as to any resulting wound. He stated:

    … [the victim] who had remained standing through these activities and leaning somewhat unsteadily at the shop frontage. It is important to note that at no stage does he appear to have had any involvement in any activity that could have provoked a response from this offender or his siblings. In appearance on the CCTV footage he appears to be more than a little befuddled by alcohol and certainly unsteady on his feet.

    The offender came up to [the victim], momentarily raising the knife the offender was holding. Initially, he raised it to a level close to the upper part of [the victim’s] body as if to strike him in that area. [The victim] turned away, causing this offender to seize [the victim’s] right elbow. At this point [bystander] said words to the effect, “No, not him”.

    After completing what I find was a feint towards the area of [the victim’s] upper body, the Offender then lowered his arm and quickly with an underarm thrusting motion stabbed into the area at the back of [the victim’s] thigh. At this point [the victim] had been in the process of turning three quarters away from the perceived threat offered by the offender. Having made the one thrust that made contact with the area at the back of [the victim’s] thigh, the offender continued to brandish the knife. He then walked away and left in the vehicle in which he had been driven to the scene. It need only be observed that the offender’s split second apparent decision not to proceed with the initial threatened thrust to the upper body of the victim underpinned aspects of my directed verdict that he disclosed no intention to cause grievous bodily harm and wound, as distinct from engaging in what immediately followed in a nonetheless vicious and spiteful act of thrusting the lengthy blade into an area consistent with the back of the victim’s thigh.

    Having regard to the elements that are required and to support the plea, I am however satisfied beyond reasonable doubt that the offender’s stabbing of [the victim] was itself an intended action to make contact, although reckless as to any resulting wound. On careful consideration I have rejected submissions made to the effect that the wounding was the product of some misjudgement or an action to merely threaten with a gesture. I find that the offender plainly intended to stab the victim, albeit with some last moment hesitation as to where that contact would be made. This was also a factor limited, both by the hesitation and the fact that the victim had instinctively started to turn away.

    [Emphasis added]

17. The victim was not posing any threat when he was stabbed by the applicant. Judge Craigie SC described the attack as “an unwarranted attack upon an unresisting and quite obviously vulnerable victim” and stated, “the offence is in those respects [was] utterly reprehensible”.

18. The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved. In the present case, the applicant was sentenced by the District Court, by way of aggregate sentence to a term of imprisonment of 2 years and 9 months, with a non-parole period of 1 year and 10 months.

19. I also note that the applicant was involved in an earlier instance of violent offending when he was a juvenile and aged approximately 15 years old. Material summonsed from the NSW Police discloses that the applicant was involved in an altercation on 28 June 2010, between two groups of males. It was suggested that the applicant bought three knives and gave them to other people and was also briefly in possession of a knife. A co-accused used one of the knives, described as a machete, to cause lacerations on a victim. The applicant’s older brother and co-accused gave evidence by way of statutory declaration and orally at hearing. He advised that the applicant did not bring the knives to the altercation on 28 June 2010, but that it was his friend. He said the applicant only held a knife briefly, for no more than 5 minutes, but gave it back to his friend. At the time the applicant was given the knife, they intended to chase another group of males who were about 30 metres away. The applicant’s brother said that he was the one who chased the other group and hit other people; not the applicant.

20. The applicant was ultimately convicted of common assault and affray and given 12 months probation for each of these offences in the Children’s Court. Although committed as a juvenile, these offences are concerning as they bear similarities to the applicant’s most recent offences committed in 2016. Namely, the applicant participated in an affray involving violence and knives and one of his siblings was a co-accused.

    (b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

21. In assessing whether the applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 13.1.2(1) of Direction No. 79. This paragraph provides that I 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

22. In a statutory declaration dated 21 January 2020, the applicant expressed remorse for his actions and advised that he had completed the Positive Lifestyles Program while at Oberon Correctional Centre and studied English. At hearing he said that he was more mature now and felt very remorseful about his behaviour. He advised that if the situation ever arose again and one of his siblings was threatened, he would “stay away from trouble and call the Police”.

23. At hearing, the applicant said that he never intended to hurt anyone and just wanted to scare people away. He said he thought the victim was going to harm his sister and “raised the knife just to threaten him”. After “the mistake” the applicant said he dropped the knife and “hurt him”. This aspect of the applicant’s evidence is inconsistent with the facts contained in the sentencing remarks of Judge Craigie SC and what he observed from viewing the CCTV footage.

24. Regarding the applicant’s risk of re-offending, Judge Craigie SC considered on sentencing two pre-sentence reports prepared by community corrections officer Ms Gregg dated 18 October 2017 and 5 April 2018. The sentencing comments also refer to a report of Dr Nguyen Hoan dated 17 October 2017. Judge Craigie SC noted on sentencing:

    …the factors indicated as relating to offending as reviewed by Ms Gregg did unfortunately indicate an incapacity to demonstrate any insight as to the impact of his approach to managing stress and anger upon his criminal conduct. Certainly an outburst of anger was an aspect I find of the present offending. Most concerningly, the offender expressed an unwillingness to engage in any interventions to address his offending behaviour or indeed its underlying causes.

    The offender attributed his offending behaviour to the outcome of familial responsibility to defend his young sister…

    The offender has expressed some regret to Ms Gregg and also in his affidavit. He indicates some regret as to the violent nature of the altercation, however I find he lacks any real insight as to an alternative to acting in the way that he did. Moreover, he has an apparent and entrenched unwillingness to address the very attitudes that brought him to the point of offending in such a violent fashion. Notwithstanding my consideration of those matters I agree with the assessment of the offender by Ms Gregg as being at a low to medium risk of reoffending.

25. Most recently, Mr David Green, psychologist, considered the applicant’s risk of re-offending in a report dated 13 October 2020. He addressed several major risk factors for re-offending, namely, the applicant’s criminal history, anti-social associates, anti-social attitudes, anti-social personality traits, lack of employment skills, family/marital dysfunction, substance abuse and poor decision making. He said in summation:

    It is my opinion that [the applicant] does not have significant risk factors for re-offending. This is his second offence; his criminal history is not extensive and it should be noted that the nature of the previous offence does not predict whether a person is likely to commit a further offence. He does not associate with anti-social individuals, he does not have anti-social attitudes or personality traits, he does not have substance abuse issues. He has good relationships with his wife and good relationships with [3 siblings] and these relationships are protective, or reduce the likelihood of re-offending. In my opinion, his overall risk of re-offending would be “Low”.

1. It appears that the applicant sought to downplay his culpability to Mr Green, who said in his report that the applicant was unclear in his explanation of his wounding of the victim and maintained it was not his intention to harm anyone. While Mr Green notes the similarity in the offences committed by the applicant in 2010 and 2016, there is no reference to the use of knives in response to a perceived threat in both instances.

2. At hearing, Mr Green said he had a “degree of concern” that the applicant maintained his actions, which resulted in the wounding of the victim, were a “mistake” and said that this may indicate partial non-acceptance by the applicant. However, he said that the applicant was in a highly emotional state at the time he committed the offences, which probably affected his memory. He noted that after the applicant realised what he had done, he checked on the victim. Mr Green maintained that the applicant’s risk of re-offending was low. He advised that he had no concern that the applicant’s siblings were co-accused in the 2016 incident resulting in the applicant’s incarceration. Mr Green stated that there appeared to be a change in the applicant’s attitude towards his siblings in that he now acknowledged they needed to “fight their own battles”. He also noted that the applicant and his siblings were no longer in contact with their younger sister, who appears to be troubled. Mr Green spoke highly of the courses provided at Oberon Correctional Centre and advised that they appear to have a positive impact on offenders and understood they reduced the risks of recidivism.

3. In assessing risk, Mr Green has stated in his report that the applicant does not knowingly associate with anti-social individuals. This, however, ignores the fact that his siblings were co-offenders in relation to the offences which led to him serving a prison sentence and a sibling was also involved in the earlier offending while the applicant was a juvenile. The applicant maintains a very close relationship with his siblings and intends to once again live with them should he be released from immigration detention.

4. On the evidence before me, I find that there remains a risk of the applicant re-offending; albeit a low risk. I am not convinced that the applicant has genuine remorse and insight into his conduct. He still maintained at hearing that he made a mistake and did not intend to stab the victim. This submission was rejected by the sentencing Judge who viewed the CCTV footage and found that the applicant “plainly intended to stab the victim, albeit with some last moment hesitation as to where that contact would be made”.

5. I am not convinced that any risk is an acceptable risk in this case. The applicant has been found guilty of a violent offence and there would be serious consequences should such offending be repeated, particularly since the applicant’s criminal conduct involved violence against a vulnerable victim. The nature of the harm caused if the applicant were to reoffend is very serious and is likely to involve significant physical and psychological harm to members of the Australian community such that any risk of reoffending is unacceptable.

6. Given the extremely serious nature of the applicant’s conduct, the significant harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct and the unacceptable risk of the applicant reoffending, I am satisfied this primary consideration weighs heavily against revocation of the mandatory cancellation decision.

   PRIMARY CONSIDERATION (B) – BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

7. Paragraph 13.2 of Direction No. 79 provides that decision-makers must make a determination about whether revocation of the mandatory cancellation decision is in the best interests of minor children in Australia affected by the decision.

8. The applicant claims that it would be in the best interest of his young niece and nephew for him to remain in Australia. The evidence shows that the applicant has been involved in the children’s lives prior to his incarceration.

9. The respondent accepts that the best interests of these children would be for the applicant to remain in Australia. However, the applicant’s sister, as the children’s mother, fulfils the primary parental role of caring for her children along with her husband, the children’s father.

10. While this consideration slightly favours revocation of the mandatory cancellation decision, it is significantly outweighed by the other primary considerations.

    PRIMARY CONSIDERATION (C) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

11. Paragraph 13.3(1) of Direction No. 79 provides that:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

12. The Principles to be applied, as set out in paragraph 6.3, state that the right of a non-citizen to be able to come to or remain in Australia is a privilege conferred in the expectation that he or she is and will be law-abiding. The applicant has committed a serious offence of reckless wounding in company, which involved the stabbing of a victim. The Australian community would expect the applicant’s visa to remain cancelled.

13. The effect of paragraph 13.3(1) points to the likelihood that community expectations will in most cases call for non-revocation, without dictating an inflexible conclusion. Generally, the question for a decision-maker is the weight to be attached to this consideration.

14. The applicant has lived in Australia from the age of 12 years old and some tolerance may be extended to those that have lived in Australia from a young age. However, only three years after his arrival in Australia, the applicant committed an offence of assault and affray as a juvenile. As a result, the tolerance of the Australian community would be limited.

15. The applicant has plainly not met the expectations of the Australian community that as a non-citizen he will obey the laws of this country. Having regard to the nature and seriousness of the applicant’s offending, and in accordance with the Principles contained in paragraph 6.3 of Direction No. 79, I am satisfied that the Australian community would expect that the applicant should not hold a visa. This primary consideration weighs heavily against revocation of the mandatory cancellation decision.

    OTHER CONSIDERATION (A) – INTERNATIONAL NON-REFOULMENT OBLIGATIONS 

16. This consideration is not relevant in this case. The applicant does not raise any international non-refoulement claims.

    OTHER CONSIDERTION (B) – STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

17. Paragraph 14.2(1) of Direction No. 79 sets out two main factors to be considered in assessing the strength, nature and duration of a person’s ties to Australia:

    (a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    (i)     less weight should be given where the person began offending soon after arriving in Australia; and

    (ii)    more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    (b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and/or persons who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

18. The applicant first arrived in Australia in 2007 at the age of 12 years old. He has resided in Australia for about 10 years until he was sentenced to imprisonment in April 2018. It is accepted that the applicant has strong ties to Australia, particularly to his siblings who would be greatly affected if the applicant was deported to Vietnam. The evidence shows that the applicant has an extremely close relationship with his siblings, no doubt as a result of their past traumas and difficult time in foster care. The applicant and his siblings were effectively orphaned in Vietnam when their mother deserted the family when they were very young, and their father died approximately six years later. They were initially cared for in Australia by their paternal grandmother and uncle but were taken separately into foster care when it was found that the grandmother and uncle had been physically and psychologically abusive. The applicant and his siblings found this separation very distressing and, when the older three siblings were released from foster care, they all moved in together. The closeness of the applicant’s relationship with his siblings is highlighted by Mr Green in his report dated 13 October 2020. He opined that the applicant would have significant difficulty coping were he to be deported to Vietnam and said:

    … [the applicant] became distressed when reminiscing about the separation when they were in foster homes. Clearly, they are very close, as they continue to live together, sharing what sounds like a crowded apartment in Cabramatta but this is what they want, to be able to live together. For [the applicant] to be deprived of the relationship with his siblings will have a grossly deleterious effect upon him and will, no doubt, have a deleterious effect upon them.

19. In addition to his close ties to his siblings, the applicant has been married to his wife, a temporary resident of Australia, for over six years. If he is removed from Australia, he will be separated from his wife. At hearing, the applicant’s wife advised that she would not return to Vietnam as she does not want to disappoint her mother. She said her mother spent all her savings to send her to Australia for a better life.

20. While I do accept the applicant’s separation from his siblings, niece, nephew and wife would be difficult, it would not be permanent in the sense that there are no restrictions, other than perhaps financial, preventing the applicant’s family from visiting him in Vietnam in the future. They may also maintain contact with each other via telephone, video and other electronic means.

21. In any event, I find that the applicant’s strength, nature and duration of ties to Australia favours revocation of the mandatory cancellation decision.  

    OTHER CONSIDERATION (C) – IMPACT ON AUSTRALIAN BUSINESS INTERESTS

22. There is no evidence before me bearing upon the impact on any Australian business interests.

    OTHER CONSIDERATION (D) – IMPACT ON VICTIMS

23. This consideration is not relevant in this case.

    OTHER CONSIDERATION (E) – EXTENT OF IMPEDIMENTS IF REMOVED

24. Paragraph 14.5 requires the decision-maker to have regard to the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account the non-citizen’s age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to them in that country.

25. There is an absence of language and cultural barriers affecting the applicant on his return to Vietnam. The applicant grew up in Vietnam, having lived there until the age of 12. There are no physical health issues or mental health issues claimed by the applicant as impediments. The only issue identified is that the applicant lacks any family support in Vietnam as no relatives have been identified as living in the country. His father died many years ago and his mother is now estranged from him and his siblings. This lack of family support in Vietnam does pose a difficulty for the applicant, at least initially, on his arrival in Vietnam as he would need to establish himself without the security of a familial base. The applicant appears to be hard working as he has previous employment experience and skills, particularly in fish cleaning and tiling.  While I accept the applicant may face delays in obtaining employment and re-establishing his life in Vietnam, any hurdles he faces are not insurmountable.

26. The extent of impediments if removed to Vietnam weighs in favour of revocation of the mandatory cancellation decision. 

    DECISION

27. For the reasons outlined above, the primary considerations of the protection of the Australian community and expectations of the Australian community weigh heavily against revocation of the mandatory cancellation decision. To the extent that other considerations weigh in favour of revocation, they are insufficient to outweigh the protection of the Australian community and expectations of the Australian community.

    55.Accordingly, the decision under review is affirmed.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

............................[SGD]............................................

Associate

Dated: 23 November 2020

Date(s) of hearing:	5 November 2020
Counsel for the Applicant:	Mr N Poynder
Solicitors for the Applicant:	AKN & Associates
Solicitors for the Respondent:	Australian Government Solicitor