DXTG and Minister for Home Affairs (Migration)

DXTG and Minister for Home Affairs (Migration) [2019] AATA 151 (14 February 2019)
Division:GENERAL DIVISION
File Number: 2018/7001
Re:DXTG
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:14 February 2019
Place:Melbourne

The Tribunal affirms the decision under review.
......[sgd].............................................
Senior Member
Catchwords
MIGRATION – visa refusal – citizen of Vietnam – failure to pass the character test – serious criminal offending – where offences committed whilst unlawful – where protection and expectations of Australian community outweigh other considerations – decision under review affirmed
Legislation
Migration Act 1958
Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Turay v Assistant Minister for Home Affairs [2018] FCA 1487
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Ministerial Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
National Drug Strategy 2017-2026 – Publications Number: 11814
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
14 February 2019
INTRODUCTION

This is an expedited review of a decision made by a delegate of the respondent to refuse an application for a Bridging E (Class WE) visa under s 501(1) of the Migration Act 1958 (the Act).
The delegate’s decision was made on 19 November 2018.
The applicant sought a review by the Administrative Appeals Tribunal of the delegate’s decision on 29 November 2018, within the timeframe provided for in s 500(6B) of the Act.
The Tribunal must make its decision by 14 February 2019 otherwise the delegate’s decision is taken to be affirmed.[1]
[1] Section 500(6L) of the Act.
The hearing in this matter was conducted on 4 February 2019. The respondent was represented by Ms Katherine Whittemore and the applicant was represented by Ms Joey Tran. In reaching its decision, the Tribunal has carefully considered the oral testimony of the applicant and the applicant’s youngest sister, as well as all of the documentary evidence before it.
BACKGROUND
General background
The applicant is a 32 year old citizen of Vietnam who arrived in Australia on 14 February 2011 as the holder of a family sponsored visitor visa.[2] The evidence before the Tribunal was that the applicant’s visa expired after three months and he has been living in Australia without a valid visa since that date.
[2] G Documents (GD) 12, p77.
The applicant married an Australian citizen in July 2014.
On 23 September 2015, the applicant was convicted in the Melbourne County Court on two counts of theft and single counts of “cultivate narcotic plant commercial quantity – cannabis” and “traffic drug of dependence”. The applicant was sentenced to an accumulative term of imprisonment of three years and six months.[3] Following his release from prison the applicant was placed back into immigration detention.
[3] GD 3.
On 10 July 2017 the applicant applied for a protection visa. The application was subsequently refused and that decision is the subject of a current merits review application before the Administrative Appeals Tribunal in a separate proceeding.
The applicant’s mother and youngest sister migrated to Australia from Vietnam in 2005. Another sister has also previously migrated to Australia. The applicant has an older brother as well as his father, from whom he is estranged, still living in Vietnam. He also has a third, adopted, sister currently living in Japan.
ISSUES
The Tribunal is required to determine two issues in making its decision. It must first determine whether the applicant passes the character test under s 501(6) of the Act.
If satisfied that the applicant does not pass the character test, it must then consider whether to exercise the discretion under s 501(1) of the Act to refuse his application for a visa. The Tribunal is required to apply the relevant considerations in Ministerial Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction) in determining whether the discretion should be exercised.
CONSIDERATION
The Character Test
In accordance with s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not pass the “character test” as defined in s 501(6).
A person will not pass the character test under s 501(6)(a) if the person has a substantial criminal record. The term ‘substantial criminal record’ is defined in s 501(7) of the Act. Relevantly, under the section, a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more. The fact that the applicant was sentenced to a term of imprisonment exceeding 12 months for his offences in 2015 is consistent with the evidence before the Tribunal and was not in contention between the parties. Accordingly, the Tribunal finds that the applicant has a substantial criminal record for the purpose of s 501(7) of the Act and that he therefore fails the character test under s 501(6).
Having determined that the applicant does not pass the character test, the Tribunal must determine whether to exercise the discretion to refuse the applicant’s visa under s 501(1). In so doing, the Tribunal must consider the guidance provided in the Direction. The relevant part of the Direction to be applied in these circumstances is Part B. Each of the relevant considerations is dealt with below.
Primary Considerations
Protection of the Australian community from criminal or other serious conduct
Paragraph 11.1(1) of Direction 65 provides that when decision-makers are considering the protection of the Australian community they:
…should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision‑makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Section 11.1.1(1) of Direction 65 further provides:
In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b)The principle that crimes 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)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; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
d)The principle that any conduct that forms the basis for a finding that a non‑citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g)The cumulative effect of repeated offending;
h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
A decision-maker should also have regard to the following principle, described in paragraph 11.1.2(1) of Direction 65 as follows:
In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
Paragraph 11.1.2(2) of Direction 65 further provides:
In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
Additionally, paragraph 11.1.2(3) of Direction 65 states:
In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct; taking into account:
i.information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
ii.evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.
The Tribunal accepts that the applicant’s offending in connection with his drug offences is serious, criminal offending.
The fact that the Court imposed a term of imprisonment of three and a half years is consistent with this assessment, particularly considering that the applicant was a first time offender. It is also reflected in the sentencing comments of the Sentencing Judge who noted a number of characteristics of the applicant’s offending that, in his view, added to its level of seriousness. These included the fact that the offending conduct was a properly planned and sophisticated operation involving a commercial quantity of drugs. The Judge also noted that the seriousness of the conduct was reflected in the maximum possible sentence for the offence, being 25 years. The Judge concluded that:
The objective seriousness of your offending disqualifies a community corrections order as an appropriate penalty, either on its own or in combination with a term of imprisonment.[4]
[4] Further Supplementary G Documents (FSGD) 2, pg 2-14.
Ms Tran, on behalf of the applicant, contended that as the offending was not violent or sexual in nature it should not be considered ‘serious’ for the purpose of the Direction. The respondent argued that such a suggestion was a misreading of the Direction and that it was clear from the wording of paragraph 11.1.1(1)(a) of the Direction that offences other than violent or sexual crimes could still be considered ‘serious’. The Tribunal agrees with the respondent.
Ms Tran also contended that the sentencing outcome the applicant received for his offences was below average for the type of offences committed and that therefore they should not be considered ‘serious’ for this reason also. The respondent argued that the description of the applicant’s sentencing outcome as being ‘below average’ was not correct in fact. The Tribunal is not satisfied that it has the probative evidence necessary to make the type of assessment the applicant is suggesting. However, despite this, it rejects the logic of the applicant’s argument on this point. Whether the sentencing outcome is above, at or below average, the length of sentence can objectively be considered to be substantial, particularly for a first time offender. In addition, the nature of the offences committed by the applicant can reasonably be described as ‘serious’, given that they are of a kind that can cause significant harm to the community.
The significant impact illicit drugs can have on the community is well documented. In particular the propensity for illicit drug use by young members of our community can have very real and long lasting effects both for the individual and the community at large. As the respondent noted in its Statement of Facts, Issues and Contentions (SFIC), cannabis must be recognised as having the potential to cause serious harm. As stated in the National Drug Strategy 2017-2026:
The use of cannabis can result in various health impacts, including mental illness, respiratory illness, and cognitive defects. In particular, cannabis dependence among young adults is correlated with, and probably contributes to, mental disorders such as psychosis[5].
[5] Respondent’s SFIC, pg 4.
In assessing the potential risk of the applicant reoffending, it is worth setting out some further background information that was presented to the Tribunal in evidence.
First, there was evidence presented relating to the applicant’s mental health issues. This included two reports from Consultant Forensic Psychologist, Mr Tim Watson-Munro which described the applicant as suffering from ongoing mental health conditions including anxiety and depression.
In his report dated September 2015, Mr Watson-Munro indicated that in his view the applicant’s mental health conditions were present in the lead up to the applicant’s offending.[6] Mr Watson-Munro also stated that the applicant’s anxiety “has been further fuelled by his concerns regarding the future, which is currently uncertain”.[7]
[6] FSGD 6, pg 32.
[7] Ibid, pg 30.
In his more recent report dated November 2018, Mr Watson-Munro stated that the applicant acknowledged that his offending was “driven by unresolved emotional distress, high levels of depression and financial duress.”[8] Mr Watson-Munro indicated that the applicant continued to suffer from high levels of depression and anxiety. He noted a number of ongoing pressures that have contributed to the applicant’s mental health conditions including the strained relationship he has with his wife; his ongoing distress as a consequence of his mother’s illness; and the ongoing uncertainty in relation to his visa status.[9]
[8] Report of Mr Tim Watson-Munro dated 15 November 2018, pg 4.
[9] Ibid.
Both the applicant and the applicant’s youngest sister also gave evidence to the Tribunal that the applicant continues to suffer from ongoing mental health concerns.
Secondly, there was evidence before the Tribunal relating to financial pressures experienced by the applicant that had emerged, in part, as a consequence of a significant gambling habit. During the course of the hearing both the applicant and his sister gave evidence that what had commenced as recreational gambling by the applicant had subsequently evolved into a serious gambling habit. The applicant conceded that his gambling amounted to problem gambling and that he could be described as addicted. The applicant described his gambling as involving both wins and losses. The amounts of money involved were very significant. The applicant’s sister gave evidence of having received $1.1m from the applicant’s gambling account held at Crown Casino. Both the applicant and his sister gave evidence of the applicant going into significant debt with a group they referred to as the ‘loan sharks’, and that this debt had accumulated through gambling. The applicant told the Tribunal that his debts ultimately amounted to around $2m. He went onto to describe that as a consequence of being unable to repay the loans both he and his family were threatened by the loan sharks. His sister gave evidence of the loan sharks attending her place of business and threatening her in a very direct manner and that as a consequence she felt in fear of her life and also feared her wider family being physically harmed.
The applicant told the Tribunal that as a consequence of his inability to repay the debt he had been pressured by the loan sharks into engaging in drug activities that ultimately resulted in his offending.
The applicant gave evidence that he continued to be indebted to the loan sharks and conceded that he continued to feel obligated to repay the loan. However, he told the Tribunal that he was determined to not do anything illegal again and that he would repay the debt gradually.
The applicant’s sister told the Tribunal that she continued to feel threatened by the loan sharks. She told the Tribunal that she believed the financial pressure her brother had experienced had contributed to his offending and she acknowledged that the issue had still not been resolved; although she was determined to come to an agreement with the loan sharks in order to do so.
There was also evidence before the Tribunal of other significant family and personal stresses on the applicant. The applicant gave evidence of stresses associated with the care of his wife while she was suffering from mental health issues of her own. He also referred to the somewhat strained nature of his ongoing relationship with her. These issues were also referred to in the reports of Mr Watson-Munro.
The applicant also gave evidence to the Tribunal regarding his close bond with his mother and his concern for her wellbeing as she continues to fight late-stage cancer. The evidence before the Tribunal was that the applicant’s mother’s prognosis was very poor.
There was also evidence from the applicant, his sister, and in the reports of Mr Watson‑Munro, that the applicant has felt and continues to feel significant stress as a consequence of the ongoing uncertainty surrounding his visa status and the potential for him to be repatriated back to Vietnam.
The respondent contends that each of the circumstances described above, with the exception of the applicant’s mother’s ill-health which occurred later, contributed to the applicant’s offending. Further, that each of the circumstances continues to be present in the applicant’s life and that therefore the risk of the applicant reoffending must be considered significant.
In addition, the respondent argues that the applicant’s risk of reoffending is further exacerbated by:
(a)the absence of any specific plans for counselling or engagement with other forms of support to address his mental health conditions and his gambling habit;
(b)the lack of genuine remorse that the respondent says is demonstrated by the applicant’s attempts through the hearing to downplay his involvement in, and responsibility for, his offending; and
(c)the applicant’s lack of respect for the law which the respondent says is demonstrated by his offending and also his decision to remain in Australia unlawfully following the expiry of his visitor’s visa.
Ms Tran, on behalf of the applicant, rejected the respondent’s contentions arguing that there are a number of factors which, when considered together, are strongly suggestive of the applicant being at no or minimal risk of reoffending. These include:
(a)the applicant has undergone counselling in relation to his mental health conditions and has expressed an intention in his oral testimony to engage in further counselling on release;
(b)the applicant has undergone a course while in prison that, according to his evidence, has contributed to a better understanding of problem gambling and measures to avoid re-engaging in that behaviour on his release;
(c)the applicant has undergone other vocational based courses that have improved his future employment prospects and demonstrate his determination to live a responsible and law-abiding life;
(d)the applicant’s family is now more fully aware of his mental health conditions and his sister has stated her commitment to providing the support necessary to ensure he is able to better manage those conditions in the future;
(e)the applicant’s youngest sister has stated her commitment to do what is necessary to reach an agreement with the loan sharks for the repayment of the applicant’s debt and to ensure that the applicant does not continue to be burdened by the financial pressures he has experienced in the past;
(f)the applicant, if released, will be able to be reunited with his mother and avoid the stress his current inability to spend time with her and care for her has been causing him;
(g)the applicant has a strong incentive to not re-engage in offending behaviour given the significant impact it would have on his family and his ability to be able to spend time with and care for his mother during her illness;
(h)the applicant has shown strong remorse and accepted responsibility for his earlier offending as evidenced by his guilty plea, and confirmed through his oral testimony before the Tribunal as well as the reports of Mr Watson-Munro; and
(i)the applicant has no prior offences and there is no evidence of a trend of increasing seriousness in his offending.

For these reasons the applicant argues that the circumstances that gave rise to the applicant’s earlier offending will not be present on his future release and that, as a consequence, the Tribunal should be satisfied that there is no longer a risk of the applicant reoffending.
The applicant gave evidence before the Tribunal regarding a number of courses he had undertaken while in prison, these included various vocation type courses as well as a course that addressed gambling addiction. The applicant told the Tribunal that he had learnt a lot from the gambling addiction course including the triggers for addictive behaviour and the importance of being fit and healthy, getting good sleep and remaining active in managing stress and avoiding addictive behaviour.
In addition, Ms Tran argued that the fact the applicant is seeking a bridging visa for an interim period only and for the purpose of spending time with and caring for his seriously ill mother, should be taken into consideration in assessing the extent of any risk he could pose to the community.
Having considered all of the material before it, the Tribunal accepts that the applicant has genuine remorse for his earlier offending and that he is a member of a loving family. This includes his youngest sister who demonstrated a strong and genuine commitment to providing her brother with all the support she can to enable him to better manage his mental health conditions, address his financial pressures and avoid reoffending in the future.
In considering the risk of reoffending the Tribunal acknowledges that:
(a)the applicant has undertaken counselling as well as a course on problem gambling while in prison and that as a result he is likely to be better placed to understand the nature of his offending and the steps required to reduce the risk of reoffending;
(b)the applicant has also made efforts while in prison to undertake vocational training to improve his future prospects on release;
(c)there is no demonstrated trend of increasing seriousness in the applicant’s offending nor that there has been any prior offending; and
(d)the applicant has significant incentives to not reoffend in the future.
However, the Tribunal also notes that, as contended by the respondent, many of the pressures that previously existed at the time of the applicant’s offending continue to exist. By any objective measure, these pressures are considerable.
In addition, while there is evidence of the applicant undertaking counselling and courses while in prison, there is no evidence of specific planning for the continuation of that kind of support after his release. Most importantly, the effectiveness of any rehabilitation that has occurred has not been tested in the community. In these circumstances, despite the best intentions of the applicant’s sister, there can be no guarantee that the applicant does not once again succumb to the mental health conditions and pressures that gave rise to his earlier offending and reoffend.
For these reasons, the Tribunal is satisfied that the risk of the applicant reoffending must be considered significant and not minimal or trivial.
Having regard to the nature of the applicant’s earlier offending, and the serious impact that type of offending can have on the community, the Tribunal finds that the risk of harm to the community from any similar reoffending by the applicant is unacceptable. While the Tribunal acknowledges the applicant’s compassionate grounds for seeking a bridging visa and acknowledges that it is intended to be interim, these factors are not sufficient to outweigh the risk to the Australian community.
The Tribunal notes that during the course of the hearing a number of references were made by Ms Tran, on behalf of the applicant, to an offer of a bond or security. The exact purpose of the offer was unclear, but the Tribunal understood it to be a measure to mitigate any perceived risk that the applicant may represent. No specific details were provided in relation to the quantum or nature of such a bond or security nor as to how exactly it fits with the present task before the Tribunal. The Tribunal is not satisfied that it is either possible or appropriate for such an arrangement to be contemplated. In any case, the Tribunal is satisfied that any such arrangement would not appropriately address the extent and nature of the risk the Tribunal has identified with respect to the applicant, particularly having regard to the emphasis on the protection of the Australian community both under the Direction and the statutory regime itself.
Having carefully considered all of the evidence, the Tribunal is satisfied that the applicant’s offending is sufficient to raise serious concerns about the safety of the Australian community should the decision to refuse the applicant’s visa be overturned. For these reasons, the protection of the Australian community weighs very heavily in favour of refusing the visa.
Best interests of minor children in Australia
The applicant does not have any children of his own but his older sister has 4 children, a boy aged 16 and daughters aged 17, 14 and 12, all of whom are Australian citizens and reside in Australia. The applicant’s older brother and adopted sister also have children but they are not Australian citizens nor resident in Australia and are therefore not relevant to the Tribunal’s consideration.
There was very limited evidence before the Tribunal of the relationship between the applicant and his Australian nieces and nephew. In his oral testimony in response to questions raised by the Tribunal, the applicant described his relationship as very close noting that he had previously lived with them for a period before going to prison. He told the Tribunal that his older sister had separated from her husband and that his nephew was living with his father with whom he had no contact but that he maintained telephone contact with the three girls through his sister. The applicant’s younger sister described the applicant having been particularly close to the children telling the Tribunal that “he is like a father to them” and describing social and sporting activities he would undertake with them. There was no direct evidence as to the relationship between the applicant and his Australian nieces and nephew either from the children’s mother or the children themselves. However, there was a letter purportedly written by the applicant’s older sister in support of his plea in mitigation to his earlier offending which includes a description of the relationship as follows:
He has always play a part of being father for my children ever since my partner and I split up. My children love him very much.[10]
[10] FSGD 8, pg 34.
The Tribunal accepts that the applicant has a genuine relationship with his Australian nieces and is likely to maintain contact with them on his release and play an important role in their lives as a loving uncle. On this basis the Tribunal is satisfied that it is in the best interests of each of the applicant’s Australian nieces that the decision to refuse the applicant’s visa be overturned. However, this is mitigated to a degree by their ages and the relatively short period before they turn 18, the risk of the applicant reoffending and the negative influence his prior behaviour may have had on them, the fact that the applicant has had a significant period of separation from them while in prison, the fact that he would be able to maintain some form of contact even if he were to return to Vietnam and the fact that he does not have any parental responsibility towards them notwithstanding the evidence that he had previously performed a ‘father like’ role.
Given the lack of any compelling evidence of a close relationship between the applicant and his Australian nephew, the Tribunal is not satisfied that it is in the best interests of the nephew that the refusal of the applicant’s visa be overturned.
For the reasons set out above, this consideration weighs only slightly in favour of the granting of the visa.
Expectations of the Australian community
Paragraph 11.3(1) of Direction 65 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision‑makers should have due regard to the Government’s views in this respect.
The Tribunal acknowledges the Federal Court decision in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, which held that this consideration is inextricably linked to the other primary considerations regarding the protection of the Australian community.
The Tribunal accepts that in light of the findings above relating to a significant risk of reoffending and an unacceptable risk of potential future harm, the Australian community would expect that the applicant’s visa be refused.
The Australian community has a low tolerance for the type of offending perpetrated by the applicant and would expect that this would weigh very heavily against the granting of a visa. This is particularly so given that the applicant’s offending occurred while the applicant was present in Australia without a legal visa.
The Australian community would expect that the Tribunal have regard for the best interests of the applicant’s nieces and nephew. However, for the reasons set out above, the Australian community would expect the best interests of the children consideration to be outweighed by the other considerations in this case.
The Australian community would also expect careful consideration be given to the potential impact a refusal of the applicant’s visa could have on the applicant’s other family members including his mother, sisters and wife. This is particularly so having regard to a number of challenges the family is currently experiencing including the serious ill-health of the applicant’s mother.
However, the Tribunal is satisfied that the nature and seriousness of the applicant’s offending is such that despite these issues the Australian community would expect that the applicant’s visa be denied.
For these reasons, the consideration of the expectations of the Australian community weighs heavily in favour of refusing the visa.
Other considerations
International non-refoulement obligations
Ms Tran argued that there was some basis for the applicant being concerned for his safety if he were to return to Vietnam. The central thrust of this argument was that there had been some reporting of the applicant’s offending in publications in Vietnam and that, as a consequence, the applicant was at risk of being pursued or harassed by authorities due to his drug offending, or by people connected to those the applicant was indebted to in Australia in relation to his outstanding debt.
The applicant’s sister told the Tribunal that she was concerned about the attention the applicant’s offending had received in Vietnam and the potential for the applicant to suffer adverse consequences if he were to return. She told the Tribunal that for cultural reasons drug offending is taken extremely seriously in Vietnam and that if the applicant were to return she believed there was a real risk that the local authorities, who knew the family, might try to pursue him and retry him for his drug offending in Australia. She told the Tribunal that Vietnam is very corrupt and that authorities might use their power to pursue the applicant in some way. She also told the Tribunal that she was concerned that associates of the loan sharks might pursue the applicant if he were to return to Vietnam.
In addition, the applicant’s sister expressed concern for the applicant given the lack of cultural acceptance of mental health issues and the difficulty the applicant might have in securing the help he needs to manage his conditions. She also expressed concern for his employment prospects given that the business he previously worked in was no longer operating and that he would have to start ‘all over’.
In giving evidence to the Tribunal the applicant was less certain about being pursued by the authorities if he were to return to Vietnam. He also acknowledged that he would have some difficulty in obtaining work although he believed he could do so. He conceded to the Tribunal that it was possible for him to move to another part of Vietnam to live and work.
The respondent argued that there was no compelling evidence before the Tribunal to support the applicant’s contentions in relation to these concerns. They referred the Tribunal to the DFAT Country Information Report dated 21 June 2017 which had been lodged with the Tribunal by the applicant’s legal representatives. The respondent noted that there was nothing in the report to suggest that the concept of double jeopardy was not understood and respected in Vietnam, although the report does suggest some possibility of arbitrary arrest and detention, particularly in relation to offences involving drug use.
As referred to earlier on in these reasons, the applicant has previously made an application for a protection visa. That application was refused by a delegate of the Minister and is now the subject of an application for review before the Administrative Appeals Tribunal in a separate proceeding. The Tribunal understands that the applicant has raised non-refoulement claims as part of that application process.
The decision of the Full Court of the Federal Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 acknowledges the requirement of the Tribunal to turn its mind to the applicant’s claims of fear and concern should he be repatriated back to Vietnam. However, as noted in Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28], that obligation does not compel the Tribunal to make a determination on whether non-refoulement obligations are owed. That of course is matter that will be properly considered in the review of the applicant’s protection visa application.[11]
[11] See also Greene v Assistant Minister for Home Affairs [2018] FCA 919 at [14]; and Turay v Assistant Minister for Home Affairs [2018] FCA 1487 at [40].
While the Tribunal acknowledges the applicant’s expressed concerns and fears should he be returned to Vietnam, the Tribunal is not satisfied that they carry considerable weight. The applicant himself conceded that he would be able to re-establish himself should he return. He also conceded in cross-examination that, should he wish to, he could re‑establish himself in a different part of Vietnam, which would mitigate any risk that does exist of unwanted attention from local authorities in the part of Vietnam in which the family is known.
In addition, the Tribunal accepts the respondent’s contention that there is no compelling evidence that the applicant is at a serious risk of being re-prosecuted for his Australian offences, although the Tribunal does acknowledge that the Country Information Report references the potential for arbitrary detention for drug users. While there may be some genuine concern about being pursued by associates of the loan sharks on his return to Vietnam, that risk would also exist if he were to be released into the Australian community. The Tribunal does acknowledge that the quality of mental health services available in Vietnam is likely to be less than reasonably expected in Australia, although there was no evidence to suggest that such services are not available.
For these reasons, the Tribunal is satisfied that consideration of the concerns and fears the applicant has on returning to Vietnam weigh only slightly in favour of granting the visa.
Impact on family members
There was compelling evidence before the Tribunal of the very close bond between the applicant and his mother and the significant distress both are experiencing as a consequence of their current separation. Based on the evidence before the Tribunal, the applicant’s mother has late-stage cancer and her prognosis is very poor. There was also evidence from the applicant’s sister as to the strong cultural obligation that the applicant is likely to feel to care for his mother in her present state of ill-health.
The Tribunal is satisfied that the close relationship between mother and son is genuine and that both are likely to suffer considerable anguish at the prospect of their ongoing separation given the applicant’s mother’s poor state of health and the prospect that she does not have long to live.
The Tribunal also recognises the strong and loving relationship the applicant has with his sisters who are resident in Australia, and his younger sister in particular. It is clear that the applicant is part of a very loving family and that the prospect of his return to Vietnam would cause anguish for his Australian-based sisters is real. Ms Tran also contended that a refusal of the applicant’s visa resulting in his return to Vietnam would place additional emotional and financial pressure on the applicant’s younger sister given the significant role she is playing in caring for their sick mother. Any such financial pressure must be exacerbated by the current freezing order in respect of significant family assets but also mitigated somewhat by the fact the applicant gave evidence to the Tribunal that he was not proposing to work if his application for a visa was granted.
The evidence in relation to the present state of the applicant’s relationship with his wife was less clear. There was evidence of the very important role the applicant had previously played in caring for his wife during a time where she was suffering significant mental health issues of her own. However, both the applicant and his younger sister’s oral testimony were suggestive of a strained relationship in more recent times.
For these reasons, the Tribunal is satisfied that consideration of the impact on family members weighs in favour of granting the applicant’s visa.
Impact on victims
The Tribunal has no evidence in relation to the impact the granting of the applicant’s visa would have on the victims of the applicant’s prior offending. Accordingly, this consideration is given no weight.
Impact on Australian business interests
No evidence was presented to the Tribunal on the impact on Australian business interests. Accordingly, this consideration is given no weight.
Additional Considerations
No evidence was presented to the Tribunal of other considerations.
CONCLUSION
The Tribunal is satisfied that the applicant does not pass the character test set out in s 501(6) of the Act and that it is therefore required to exercise the discretion in s 501(1) of the Act in accordance with Direction 65 – Part B. The Tribunal has carefully assessed each of the considerations of Direction 65, as set out above.
The Tribunal recognises the serious nature of the applicant’s prior offending. The Tribunal acknowledges the significant risk the applicant’s release could pose to the Australian community. The Tribunal recognises that the best interests of the applicant’s Australian nieces would be served by granting the visa although this is mitigated by a number of factors. The Tribunal has had particular regard to the impact a refusal of the applicant’s visa may have on the applicant’s family members and also the concerns the applicant has raised in respect of his return to Vietnam. Having very carefully weighed all of the considerations, the Tribunal is satisfied that the overall balance falls in favour of a decision to refuse the visa.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

…[sgd]…………………………………….
Associate
Dated: 14 February 2019

Date of hearing: 4 February 2019

Solicitors for the Applicant:
JT Lawyers
Ms Joey Tran

Solicitors for the Respondent: Sparke Helmore Lawyers
Ms Katherine Whittemore

[2019] AATA 151

14 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Remedies

Date of hearing:	4 February 2019
Solicitors for the Applicant:	JT Lawyers Ms Joey Tran
Solicitors for the Respondent:	Sparke Helmore Lawyers Ms Katherine Whittemore