FTDN and Minister for Home Affairs (Migration)
[2019] AATA 1301
•16 May 2019
FTDN and Minister for Home Affairs (Migration) [2019] AATA 1301 (16 May 2019)
Division:GENERAL DIVISION
File Number(s): 2019/1016
Re:FTDN
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Member S Burford
Date:16 May 2019
Place:Perth
The Reviewable Decision, being the decision of the Respondent’s delegate dated
20 February 2019 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed........................[sgd]................................................
Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa –– Australia Direction no. 79 – weighing up of primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if returned to Vietnam – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43
Migration Act 1958 (Cth) – s 499, s 499(1), s 499(2A), s 500, s 500(1)(ba), s 500(6B),
s 500(6L), s 501, s 501(3A), s 501(6), s 501(6)(a), s 501(7), s 501(7)(c),
s 501CA, s 501CA(4), s 501G(1)CASES
Afu and Minister for Home Affairs [2018] FCA 1311
Ayache and Minister for Immigration and border Protection [2018] AATA 310
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 9
DKXY v Minister for Home Affairs [2019] FCA 495
Doan and Minister for Home Affairs [2019] AATA 169
FYBR v Minister for Home Affairs [2019] FCA 500
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Kumeroa and Minister for Home Affairs [2018] AATA 3744
Margach and Minister for Home Affairs [2019] AATA 353
Morris v Minister for Immigration and Border Protection [2018] AATA 3374
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration & Border Protection (2016) 248 FCR 296
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
Wang and Minister for Immigration and Border Protection [2014] AATA 89
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 65 – 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 (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 79 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA – paras 6.1, 6.2, 6.3, 8, 12, 13, 14, Part C
REASONS FOR DECISION
Member S Burford
16 May 2019
THE APPLICATION
This is an application for review of a decision made on 20 February 2019 under
s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa (the visa) (R1, G13, page 38-56).
The visa was cancelled on 16 July 2018 under s 501(3A) of the Act on the basis that the Applicant had a substantial criminal record and was serving a sentence for imprisonment (R1, G3, page 9).
THE ISSUE
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Act), having regard to the primary and other considerations in Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction no. 79).[1]
[1] Minister for Immigration and Border Protection,JURISDICTION
This application is made pursuant to s 500(1)(ba) of the Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under s 501CA(4) of the Act not to revoke a decision to mandatorily cancel a visa.
The Reviewable Decision dated 20 February 2019 was delivered to the Applicant by email to his authorised recipient, his legal representative, under cover of a letter dated
21 February 2019 (R1, G13, page 38-39). The email was sent on the same day (R1, G13, pages 36-37).The Applicant lodged his application for review in the Tribunal on 25 February 2019
(R1, G2, page3). The Applicant is in Acacia Prison and is in the migration zone.
He therefore lodged his application for review by the Tribunal within the nine-day period after he received the Reviewable Decision in accordance with s 501G(1) and s 500(6B) of the Act.The Tribunal is satisfied that the application was lodged within time and that the Tribunal has jurisdiction to review the Reviewable Decision.
Further, pursuant to s 500(6L) of the Act, the Tribunal must comply with the
84 day timeframe for handing down a decision in this matter. Accordingly, the decision must be handed down by 16 May 2019.Direction no. 79 is applicable due to the date of this decision by the Tribunal. This is discussed in further detail below in the section headed “Direction no. 79”.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on 9 and 10 May 2019. The Applicant appeared in person and was represented by Mr McDonald-Norman of Counsel, instructed by MyVisa Lawyers, who also appeared in person. The Respondent was represented by Ms Tattersall, Sparke Helmore Lawyers, who appeared in person.
The Applicant gave oral evidence and was cross-examined. Both the Applicant and the Respondent made oral submissions.
The Applicant called several witnesses in support of his application. In addition to the Applicant, the following witnesses appeared before the Tribunal:
·Ms Diem Thi Nguyen, the de facto partner of the Applicant
·Miss Jasmine Thi Dong Nguyen, the daughter of the Applicant
·Mr Thien Ba Nguyen, the step-son of the Applicant
·Ms Deborah May Hughes, a friend of the Applicant
·Mr Minh Dong Nguyen, a friend of the Applicant.
Each of these witnesses gave of oral evidence and was cross-examined. Miss Jasmine Nguyen is 15 years old. The Tribunal assessed that she understood the nature of the proceedings and was competent to give evidence relating to her relationship with her father and the impact his removal would have on her and her siblings.
The Tribunal admitted the following documents into evidence at the hearing:
·Exhibit A1 - Applicant’s Statement of Facts, Issues and Contentions dated 26 April 2019
·Exhibit A2 – Statutory Declaration of FTDN dated 24 April 2019, including attachments
·Exhibit A3 - Statutory Declaration of Diem Thi Nguyen dated 26 April 2019
·Exhibit A4 – Statutory Declaration of Jasmine Thuy Duong Nguyen dated 26 April 2019
·Exhibit A5 – Excerpts from the Growth that Works for All: Viet Nam Human Development Report 2015 on Inclusive Growth, UN Development Program
·Exhibit A6 – ‘Notice of Surety as to Terms of Bail’ regarding Diem Thi Nguyen
·Exhibit A7 – Statutory Declaration of Thien Ba Nguyen dated 6 May 2019
·Exhibit A8 – Statutory Declaration of Deborah Hughes dated 6 May 2019
·Exhibit A9 – Statutory Declaration of Minh Duong Nguyen dated 6 May 2019
·Exhibit R1 – G Documents
·Exhibit R2 – Respondent’s Statements of Facts, Issues and Contentions dated 5 April 2019
·Exhibit R3 – Respondent’s Tender Bundle, Two Volumes
·Exhibit R4 – Respondent’s Supplementary Tender Documents
·Exhibit R5 – Respondent’s Further Supplementary Tender Documents.
BACKGROUND
The Applicant is a 46 year old Vietnamese national. He arrived in Australia on 14 August 1987 as a refugee. He was 15 years old. He was subsequently granted the visa (R2, paragraph 8).
The Applicant was notified by letter dated 16 July 2018 from the Department of Home Affairs (Department) that his visa was cancelled under s 501(3A) of the Act. The letter was delivered by hand to the Applicant at Acacia Prison (R1, G3). The Applicant acknowledged receipt of that letter on 17 July 2018 (R1, G4).
The letter from the Department advised the Applicant that he could make representations about revoking the decision to cancel his visa (R1, G3). The Applicant did so (R1, G24).
The Applicant made submissions to the Department including providing material and third-party statements in support of his request for revocation (R1, G25 and G31-38). The Department confirmed receipt of those representations on 6 August 2018 (R1, G7).
As noted above, under cover of a letter dated 21 February 2019 the Applicant was notified of the decision not to revoke the visa cancellation. That letter and the Reviewable Decision dated 20 February 2019 were delivered to the Applicant via email to his authorised recipient, his legal representative on 21 February 2019 (R1, G13, page 36-39).
On 25 February 2019 the Applicant lodged an application in the General Division of the Administrative Appeals Tribunal for review of the Reviewable Decision (R1, G2, page3).
THE APPLICANT’S CRIMINAL HISTORY
The Applicant’s criminal history and prior warnings
The Applicant’s criminal history, as disclosed in the ‘Check results report’ from the Australian Criminal Intelligence Commission released on 6 October 2018 (R1, G14) as follows:
Jurisdiction
Offence
dateResult
dateOffence
Result
NSW
03/10/90
15/06/92
· Receiving (s 80AA warrant)
· s 558 recognizance $1000
· good behaviour bond
· 5 years supervision community correction service
· Court costs $45
NSW
09/10/90
15/06/92
· Steal motor vehicle
(s 80AA warrant)· s 558 recognizance $1000
good behaviour· 5 years supervision community correction service
· Court costs $45
NSW
09/10/90
15/06/92
· Stealing (two counts)
(s 80AA warrant)· s 558 recognizance $1000 good behaviour
· 5 years supervision community correction service
· Court costs $45
NSW
17/04/91
01/05/91
· Stealing (Shoplifting)
· Fine - $300
NSW
20/05/92
08/07/92
· Possess prohibited drug
· Fine - $200
NSW
20/05/92
08/07/92
· Self-administer prohibited drug
· Fine - $200
NSW
20/05/92
08/07/92
· Possess equipment to administer prohibited drug
· Fine - $200
NSW
25/11/92
27/05/93
· Supply prohibited drug
· 6 months periodic detention
NSW
11/03/93
31/03/93
· Possess prohibited drug (heroin)
· s 558 recognizance $200 self-good behaviour bond - 2 years
· Fine - $500
NSW
11/02/94
03/03/94
· Supply prohibited drug
(s 80AA warrant)· Minimum term 9 months from 10/02/94 add term 3 months
· Release subject to supervision (confirmed on appeal)
NSW
unknown
14/12/94
· Knowingly take part in supply of prohibited drug
· Minimum term 18 months from 10/02/94 add term 18 months
· Release subject to supervision
NSW
22/03/96
03/12/96
· Resist arrest
· Fine - $300
· Court costs - $50
NSW
22/03/96
03/12/96
· Assault police
· Fine - $1,000
· Court costs - $50
NSW
14/11/96
06/02/97
· Possess prohibited drug
· Fixed term 2 months
NSW
08/08/98
24/09/98
· Possess loaded firearm public place – T2
· Fixed term 4 months
NSW
08/08/98
24/09/98
· Possess unauthorised firearm – pistol – T2
· Fixed term 2 months
(concurrent)NSW
08/08/98
24/09/98
· Possess prohibited weapon without permit
· Fixed term 2 months
(concurrent)NSW
04/06/03
02/02/04
· On/enter/leave drug premises – 1st offence
· 6 months imprisonment
(on appeal, in lieu:
6 months suspended imprisonment on entering bond)·
NSW
04/06/03
02/02/04
· Possess ammunition without holding
licence/permit/ authority· Fine - $2,000 (confirmed on appeal)
NSW
15/05/04
26/05/05
· Possess prohibited drug
· s 9 good behaviour bond
· 12 months accept supervision of probation and parole service re: drugs and alcohol
NSW
27/05/05
28/07/06
· Possess unauthorised prohibited firearm – T2
· Community service order: 300 hours
NSW
09/07/05
08/01/07
· Possess unauthorised prohibited firearm – T2
· Imprisonment – 10 months
Non-parole period 6 months (confirmed on appeal)WA
19/08/10
20/08/10
· Possess a Prohibited Drug (Heroin)
· Fine - $400
NSW
30/10/10
22/11/10
· Licence expired 2 years or more before 2nd + offence
· Fine - $1,200
· Court costs - $79
· 12 months disqualification
WA
03/06/11
10/10/12
· Permit use of premises for use of drug or plant
· Fine - $1,000
WA
02/06/16
14/07/16
· Carried a controlled weapon
· Fine - $600
WA
26/06/16
11/08/16
· No authority to drive (never held)
· Fine - $250
· Disqualified 3 months concurrent
WA
30/07/16
19/10/16
· No authority to drive (fines suspended)
· Fine - $200
WA
14/10/16
17/04/18
· Possess Drug Paraphernalia containing prohibited drug/plant
· Fine - $150
WA
14/10/16
25/05/18
· Possession of a prohibited drug with intent to sell or supply (methylamphetamine)
· Imprisonment: 20 months
WA
14/10/16
25/05/18
· Possession of stolen or unlawfully obtained property
· Imprisonment: 6 months (concurrent)
WA
01/03/17
17/04/18
· Possessed drug paraphernalia in or on which there was a prohibited drug or plant
· Fine - $150
WA
25/04/17
26/03/18
· Possession of stolen or unlawfully obtained property
· Fine - $600
WA
25/12/17
19/01/18
· No authority to drive (never held)
· Fine - $250
Since arriving in Australia in 1987, the Applicant has been convicted of more than
30 offences in the Australian courts. These offences include (but are not limited to):
·Property offences including stealing;
·Drug offences including supplying prohibited drugs and possessing prohibited drugs including with the intention to supply or sell;
·Possessing unauthorised prohibited firearms and carrying controlled weapons, including possessing a loaded firearm in a public place;
·Resisting arrest and assaulting police; and
·Driving without authority on multiple occasions.
(R1, G14; R2, Attachment B)
In relation to the Applicant’s history of drug-related offences in November 1992 the Applicant committed an offence of ‘supplying a prohibited drug (heroin)’. He was convicted that offence on 27 May 1993. On 11 March 1993 the Applicant committed the offence of ‘possessing prohibited drug (heroin)’. He was convicted for that offence on
31 March 1993. Also in March 1993 the Applicant committed the offence of ‘supplying a prohibited drug’ for which he was convicted on 3 March 1994. This offence related to the supply of heroin to an undercover operative of the police. The Applicant pled not guilty to the offence. The Applicant was sentenced to a minimum term of nine months imprisonment and an additional term of three months with release subject to supervision. The Applicant appealed against the sentence imposed and the sentence was confirmed on appeal. The sentencing judge indicated that the Applicant supplied drugs for monetary gain (R1, G16, page 65).By letter dated 16 March 1995 from the Department of Immigration and Ethnic Affairs addressed to the Applicant in Oberon Correctional Centre (R1, G20, page 84) the Applicant was advised that with respect to his conviction on 3 March 1994 for supply prohibited drug he was “liable to deportation pursuant to s. 200 of the Migration Act”. The letter noted:
The Minister’s delegate decided on 19 February 1995 not to order your deportation on the basis of this conviction. Nevertheless you are warned that any further conviction will lead to the question of your deportation being reconsidered. Disregard of this of this warning will weigh heavily against you in the event of your case being re-opened.
The letter indicated that extracts from the Migration Act and a copy of the Government’s ‘Criminal Deportation Policy’ was included with the letter.
The Tribunal notes that at the hearing the Applicant testified that he did not receive that letter. However, he indicated that he remembered getting a warning from the Minister that if he committed further crimes his visa might get cancelled. He said he did not know much English and he did not look at the paperwork. However, he told the Tribunal someone visited at around that time and told him if he committed further crimes he might get deported (Transcript, page 71).
On 14 December 1994 the Applicant was convicted of ‘knowingly take part in supply prohibited drug’ for which he was sentenced to a minimum term of 18 months and an additional term of 18 months and was release subject to supervision.
Between December 1996 and January 2007 the Applicant was convicted of a range of offences including ‘resist arrest’, ‘assault police’, possessing prohibited drugs possessing unauthorised prohibited firearms and possessing a loaded firearm in a public place. He received a range of sentences, including custodial sentences up to 6 months, fines, good behaviour bond and community service orders. (R2, Attachment B)
On 30 March 2007 the Department of Immigration and Multicultural Affairs notified the Applicant that his visa was liable for cancellation under s 501 of the Act on character grounds. On 29 June 2007, the Department of Immigration and Citizenship notified the Applicant that the Minister had made a decision not to cancel visa on character grounds at that time (R1, G21). However, the Applicant was given the following formal warning:
Please note that these visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.
(Original emphasis.)
The Applicant signed acknowledging receipt of the notice and stating:
I understand that I can again be considered for refusal cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.
(R1, G21, page 87)
In August 2010 the Applicant committed the offence of ‘possessing prohibited drug (heroin)’. In relation to the circumstances of that offence, the Applicant was stopped at the entrance to Hakea prison and 0.06 g of heroin located in a vial on his person
(R2, paragraph 14).Between 3 June 2011 to 13 March 2012 the Applicant committed the offence of ‘permit use of premises for use of drug or plant’. He pled guilty is that offence on
10 October 2012. During that period on four separate occasions police found drugs and drug related equipment including heroin and methylamphetamine on the Applicant’s premises. The charges alleged that the Applicant occupied the premises and knowingly permitted those premises to be used for the purpose of use, sale and supply of prohibited drugs (being methamphetamine and heroin).On 14 October 2016 the Applicant committed the offences which gave rise to the mandatory cancellation of the visa. On that date police searched the Applicant’s hotel room in Broome and located four packages of methylamphetamine concealed in the bottom of a WD-40 canister. The police also located $7000 in cash and a glass pipe upon which there was methylamphetamine. This gave rise to charges for:
·possess drug paraphernalia containing prohibited drug/plant;
·possession of stolen or unlawfully obtained property; and
·possession of a prohibited drug with intent to sell or supply (methylamphetamine)
The Applicant denied knowledge of the methylamphetamine.
The Applicant was convicted of the second and third offences on 25 May 2018. On
1 March 2017 the Applicant committed the offence of ’possess drug paraphernalia in or on which there was prohibited drug or plant’. The Applicant pled guilty to that offence and to the similar offence committed on 14 October 2016 on 17 April 2018. Tribunal notes that offence was committed while the Applicant had proceedings pending in relation to the offences committed on 14 October 2016.On 2 June 2016, the Applicant committed the offence of ‘carried a controlled weapon’ for which he was convicted and fined on 17 April 2018 (R2, paragraph 17). On 25 April 2017 the Applicant committed the offence of ‘possession of stolen or unlawfully obtained property’. He was convicted of that offence on 26 March 2018 (R2, Attachment B).
The Applicant has also been convicted on a number of occasions of driving offences including driving without a licence. (R2, paragraph 22 and Attachment B)
The Tribunal notes that there were two periods where the Applicant was detained on remand awaiting trial. One was in New South Wales when he was detained on remand for three years awaiting trial for grievous bodily harm with intent to murder and murder. He was found not guilty of those offences in 2000 and 2002 respectively. Accordingly, the Tribunal does not take those offences into account in his offending history but rather notes that he was in custody during those periods (roughly from 1999 to 2002). Between 2012 and 2014 the Applicant was held on remand in relation to a murder charge. Those charges were later dropped.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act provides that:
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));…
(Original emphasis.)
A ‘substantial criminal record’ is defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of
12 months or more; or(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…
(Original emphasis.)
Section 501CA of the Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
(Original emphasis.)
Direction no. 79
Section 499(1) of the Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Act states that ‘[a] person or body must comply with a direction under subsection (1)’.
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made Direction no. 79 under s 499 of the Act. The direction commenced operation on
28 February 2019, replacing the previous direction, Direction no. 65.[2] Consequently, as the Tribunal is handing down this decision on 17 April 2019, the Tribunal must apply
Direction no. 79. The Tribunal proceedings were conducted on the basis that
Direction no. 79 applied.
[2] Minister for Immigration and Border Protection, Direction no. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (22 December 2014).
Paragraph 6.1 of Direction no. 79 sets out the “Objectives” of the Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction no. 79 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction no. 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4), including the Tribunal:
(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.
Informed by the principles set out in paragraph 6.3 of Direction no. 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction no. 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction no. 79). Specifically, paragraph 13(2) of Direction no. 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Paragraph 14(1) of Part C of Direction no. 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations 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;
e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction no. 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in Direction no. 79 can be found in paragraph 8 of Direction no. 79 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(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.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Act).
On 25 May 2018 the Applicant was convicted of ‘Possession of a prohibited drug with intent to sell or supply (methylamphetamine)’ for which he received a 20 month sentence of imprisonment.
He was also convicted on that occasion of ‘Possession of stolen or unlawfully obtained property’ for which he received a concurrent sentence of six months imprisonment.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more he does not pass the character test under s 501(6)(a) and s 501(7)(c) of the Act. The Applicant accepted he did not pass the character test (A1, paragraph 10).
The issue remaining for determination is whether the Tribunal is satisfied that there is another reason, pursuant to s 501CA(4) of the Act, why the decision to cancel the Applicant’s visa should be revoked.
IS THE TRIBUNAL SATISFIED THAT THERE IS ANY OTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
The Applicant’s Statement of Fact, Issues and Contentions and submissions to the Tribunal outlined the ‘other reasons’ why the Applicant says the cancellation should be revoked (A1). The Applicant’s main submissions may be summarised as follows:
·The Applicant regrets his crimes, acknowledges their severity and has begun efforts to address substance abuse that was identified as the underlying cause of his offending. This and his change circumstances with regard to his children serve to reduce the risk of re-offending such that the protection of the Australian community does not require the Applicant to be removed from Australia;
·The Applicant has a strong relationship with his three Australian citizen minor children and is a key source of support for them. His removal from Australia would have a significant deleterious impact on them; and
·In addition to the general negative impact the applicant’s removal would have on his minor children, his removal from Australia at present time would have a devastating impact on his minor children because his de facto partner may not be available to care for the children as she is herself facing serious criminal charges which, in the event she is convicted, may result in a custodial sentence.
·Further the Applicant will face severe or substantial impediments to resettlement in Vietnam because of the nature of the economic conditions in Vietnam.
(A1; Transcript page 11)
These submissions and those of the Respondent, will be dealt with in more detail below.
First primary consideration: Protection of the Australian community (paragraph 13(2)(a) of Direction no. 79)
Paragraph 13.1(1) of Direction no. 79 provides that:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens 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…
Paragraph 13.1(2) of Direction no. 79 then provides:
(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.
As noted above the Applicant made a number of submissions in relation to his offending and the protection of the Australian community. In summary, these submissions were that (A1, paragraphs 11-31):
·the Applicant had a difficult upbringing and his actions were a product of his circumstances;
·the majority of the applicants offending occurred a significant time ago;
·his most recent conviction is uncharacteristic of the severity of his offending in recent years;
·the sentence imposed for his most recent convictions fall well short of the statutory minimum which should be taken into account in assessing the seriousness with which they were viewed by the sentencing court;
·the Applicant has new found insight into his offending and a commitment to drug rehabilitation which will reduce his risk of re-offending;
·the Applicant has good prospects for employment which will also reduce his risk of re-offending;
·the prospect of removal from Australia and of his children being without parental support has brought home to the Applicant the seriousness of his offending. Given his change in circumstances his previous conduct is not necessarily representative of how we will act in the future and the Tribunal should find that the Applicant would be capable of rehabilitation in a way that has not previously been the case.
The Applicant submitted that, as a result of these factors, if the Reviewable Decision was revoked, his risk of re-offending would be low and the protection of the Australian community would not require that his visa remained cancelled.
The Respondent contended that the protection of the Australian community weighed heavily against revocation (R2, paragraph 39).
The Respondent submitted that the Applicant’s offending should be viewed as very serious having regard to the following factors:
·the Applicant has been convicted of violent offences including ‘unlawful assault police’;
·the Applicant has received terms of imprisonment for his offending. As imprisonment is a last resort in the sentencing hierarchy a term of custodial imprisonment must be viewed as a reflection of the objective seriousness of the offence involved;
·in addition to violent offences the Applicant has been convicted of a range of offences including stealing offences, drug offences, driving offences and firearm offences. His offending is both frequent and in of increasing seriousness;
·the Applicant has re-offended on number of occasions following formal warnings.
(R2, paragraphs 28-33)
The Respondent submitted that the Applicant represented an unacceptable risk of harm to the Australian community having regard to:
·the nature of the harm to the community if the Applicant were to re-offend is very serious and likely to involve physical and psychological harm without adverse consequences for public health, the justice system and the general incidence of drug-related crime. Due to the seriousness of the harm any risk of a repeat of the Applicant’s previous conduct is unacceptable;
·the Applicant has a long-standing history of substance abuse and there is no evidence that the Applicant has undergone any rehabilitation. Further the applicant’s family have not been protective factors in the past and there is no evidence that they would be protective factors in the future;
·changing his behaviour and in particular his drug use has not been tested in the community and the likelihood of his re-offending remains a real possibility.
(R2, paragraphs 34-39)
Nature and seriousness of the conduct (paragraph 13.1(2)(a) of Direction no. 79)
Paragraph 13.1.1(1) of Direction no. 79 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i)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 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.
The Applicant arrived in 1987. He was convicted of ‘Stealing (Shoplifting)’ on 1 May 1991 for an offence committed on 17 April 1991. He received a fine for that offence. On
15 June 1992 he was convicted of ‘Stealing MV’, ‘Stealing (2 counts)’ and ‘Receiving’. Those offences were committed on 3 and 9 October 1990. He received a good behaviour bond for five years for those offences (R1, G14, page 60; R2, Attachment B).
The Applicant commenced offending just over three years from the date of his arrival in Australia. While his initial offending would not, on its own, be regarded as serious he has continued to offend frequently. His drug offences, in particular had increased in seriousness moving from drug possession to supply and intent to supply. Although there have been periods where the Applicant’s rate of offending have been less frequent he has consistently offended over the course of his 30 years in Australia, particularly when the periods he has spent in prison and under supervision orders are taken into consideration.
In considering the nature and seriousness of the Applicant’s criminal conduct to date, the Tribunal notes the Applicant’s conviction for violent offences including “assault police” (13.1.1(1)(a) of Direction no. 79) (R1, G14, page 60, Attachment B). Paragraph 13.1.1(1)(a) of Direction no. 79 states the principle that violent crimes are to be viewed seriously. The Applicant’s assault conviction qualifies as a violent crime and accordingly are to be viewed seriously, however the Tribunal notes that having regard to the sentence imposed for the offence, as the Applicant only received a fine for that offence, it should be viewed on the lower end of seriousness of violent crimes.
The Applicant submitted, and the Tribunal accepts, that the Applicant has not been convicted of multiple violent offences. The majority of the Applicant’s offences are drug related. However, the Tribunal notes the Applicant has been convicted of a number of serious weapons offences including carrying a loaded firearm in a public place. Such offences are serious and carry with them a risk of harm to the community.
The Tribunal further notes:
(a)the Applicant’s offences against police (including resisting arrest, and assaulting police) when they have been performing their public duties (13.1.1(1)(c) of Direction no.79);
(b)the imposition of numerous terms of imprisonment by the courts (R1, G14), including (13.1.1(1)(d) of Direction no. 79):
(i)
six months periodic detention for “supply prohibited drug (heroin)”
(27 May 1993);
(ii)nine months with an additional three months for “supply prohibited drug”
(3 March 1994, release subject to supervision);(iii)18 months with an additional 18 months for “knowingly take part in supply prohibited drug” (14 December 1994, release subject to supervision);
(iv)two months fixed term for “possess prohibited drug” (6 February 1997);
(v)
four months fixed term for “possess loaded firearm public place – T2”
(24 September 1998);
(vi)two months fixed term (concurrent) for “possess unauthorised firearm – pistol – T2” (24 September 1998);
(vii)two months fixed term (concurrent) for “possess prohibited weapon without permit” (24 September 1998);
(viii)
six months suspended imprisonment on entering bond (in lieu of six-month imprisonment sentence on appeal) for “on/enter/leave drug premises”
(2 February 2004);
(ix)
10 months imprisonment “possess unauthorised prohibited firearm – T2”
(8 January 2007);
(x)20 months imprisonment for “possession of a prohibited drug with intent to sell or supply (methylamphetamine)” (25 May 2018);
(xi)six months imprisonment (concurrent) for “possession of stolen or unlawfully obtained property” (25 May 2018);
(R2, Attachment B)
(c)the frequency, and cumulative effect of the Applicant’s repeated offending over a 30 year period, which commenced 3 years after he arrived in Australia (in 1987) (13.1.1(1)(e) and (f) of Direction no. 79); and
(d)the numerous further offences committed by the Applicant after receiving warnings in 1995 (R1, G20, page 84) and 2007 (R1, G21, page 85) to the effect that further offending may result in his deportation or the cancellation of his visa, as detailed above (13.1.1(1)(h) of Direction no. 79). In the Tribunal’s opinion, continuing to offend after receiving these warnings demonstrates a lack of insight into his offending.
The Applicant has a long offending history, particularly with respect to drug offences both in Western Australia and in New South Wales. He has been involved in the supply and sale of drugs including methalyamphetamine and heroin. According to the findings of the courts he has sold drugs both to make cash and to feed his own addiction
(R1, G18, page 74; G16, page 65-66). In the Tribunal’s view the impact of such offending on the Applicant, his family and the broader community is serious.In sentencing the Applicant for the offences which gave rise to the mandatory cancellation of his visa his Honour, District Court Judge Stavrianou, made the following observations about the content of the impact of drug offending in Western Australia (R1, G18, page 78):
It is the experience of the course that illicit drugs cause or material contract materially contribute to a very significant proportion of the criminal offending committed in the state, either as a result of users acting under the influence, or because of the need to finance or secure their supplies of drugs. Illicit drug abuse in this state is very is a very significant problem, both in terms of its extent and its consequences. Daily there are references in the media to the effect of the use of methylamphetamine upon our community.
Moreover, specific significant public resources are devoted to the difficult task of detecting and apprehending offenders. Whether the motive or rationalisation for participation in drug distribution, the incentives to participate must be counterbalanced by clear and certain understanding that such involvement will ordinarily result in a penalty of immediate imprisonment.
These comments also highlight the cumulative effect of repeated drug offending (paragraph 13.1.1(1)(f) of Direction no. 79), which is evident in the Applicant’s offending history. The fact that detecting and prosecuting the Applicant’s offending behaviour has engaged significant public resources is evident from the large volumes of material produced to the Tribunal by the police and courts in Western Australia and New South Wales. In the view of the Tribunal the impact of such behaviour on scare public resources cannot be easily dismissed.
With respect to the sentencing of the Applicant (Direction no.79, 13.1.1.1(1)(d)), the Respondent submitted that the Applicant’s custodial sentences, particularly with respect to the offending which gave rise to the mandatory cancellation of his visa were at the lower end of the spectrum having regard to the statutory maximum penalties available for such offences. Counsel for the Applicant drew the Tribunal’s attention to the fact that the maximum penalty for the Applicant’s offence under the Misuse of Drugs Act for possession of methylamphetamine is a sentence of 25 years imprisonment. The Applicant was sentenced to 20 months. He was also convicted of possession of stolen or unlawfully obtained property. The maximum penalty for that offence is seven years and he received a sentence of six months (Transcript page 117). Counsel for the Applicant submitted that the sentences imposed were imposed with a view to FTDN’s potential to break the cycle of substance abuse that lay at the heart of the offences, that is the sentences were imposed with an eye towards potential rehabilitation of the Applicant even with regard to his long history of offending (Transcript, pages 117 – 118).
The Respondent submitted that:
Regardless of the sentence imposed the applicant has been convicted of numerous, very serious drug-related, fire-arms related and some violence related offences, and they need to be considered extremely serious.
(Transcript, page 130)
In the Tribunal’s view, while the statutory maximum’s provide a guide as to the seriousness with which offences are regarded, to merely have regard to the maximum penalties misrepresents the complex process of sentencing which the courts engage in. Custodial sentences are a penalty of last resort. This is evident not only in the comments from sentencing judges in the Applicant’s cases but also from the record of his offending history. He has repeatedly been given a range of non-custodial sentences, notwithstanding his prior convictions. The courts have referred in detail to his personal history and the role it may have played in his offending. They have expressly taken that history into account. Only when the Applicant failed to comply with non-custodial sentences and avail himself of the chances he was given by repeating his offending did the courts resort to custodial sentences. Transcripts of the sentencing hearings of the Applicant in March 1994, April 1994, January 2007 and May 2018 evidence the courts consideration of the Applicant’s circumstances and behaviour in the sentencing process (R1, G15, G16, G17 and G18). In doing so they have taken account of the Applicant’s circumstances, including promises to change his behaviour. This is highlighted in the comments of Stavinou DCJ when he noted:
There is a need for general deterrence in relation to this type of offending. I take that into account. There is a need for specific deterrence. You must understand that you cannot commit this type of offence. More specifically trafficking in drugs results in significant adverse consequences to the drug users and community as a whole.
The drugs in your possession, all or part of those drugs were for sale or supply…. The jury was clearly satisfied beyond reasonable doubt that all or part of those drugs were for supply.
You’ll appreciate that I have, in my view, imposed a merciful disposition upon you.… I’ve taken into account all the circumstances of the matter. I wish to make it very clear to you that while you do have a prior history that is not an aggravating feature of the offending for which you’re being sentenced today.
As I said your record doesn’t – record demonstrates that you’re not entitled to any leniency for good character. I’ve taken into account all of your circumstances, all of your background in concluding the 20 months is the appropriate sentence in this matter.
(R1, G18, pages 78, 80-81)
In particular his Honour had regard to the five years the Applicant had spent on remand for other charges in order to ensure the sentence imposed for the offences was not ‘crushing’.(R1, G18, page 77)
The Tribunal considers that the sentences imposed on the Applicant reflect the efforts of the criminal justice system to encourage the Applicant to reform his criminal behaviour. They were imposed as a last resort when other efforts had failed. The sentencing judge’s comments on 25 May 2018 highlight that the 20 month sentence was an attempt to impose a sentence that was ‘merciful’, not crushing to the Applicant but which achieved the important goals of both general and personal deterrence. The Tribunal finds on the basis of the comments of the sentencing judge that while the imprisonment term was well below the maximum available this did not reflect a view by his Honour that the offending was not serious.
While there was some suggestion from the Respondent that the Applicant may have engaged in violence towards his de facto partner, she denied this was the case and the Tribunal does not find on the evidence available that he had engaged in such behaviour. Accordingly, paragraph 13.1.1(1)(b) does not apply. There was no evidence that the Applicant provided false or misleading information to the Department (paragraph 13.1.1(1)(g) of Direction no. 79). Paragraph 13.1.1(1)(i) of Direction no. 79 is also not applicable because there is no evidence that the Applicant has committed any crimes in immigration detention.
The Tribunal notes that the Applicant acknowledged his offending was serious and expressed remorse for his actions. This was in part a submission addressed to the Applicant’s likelihood of re-offending. Those submissions are considered further below.
It was also submitted that the Applicant’s personal history and circumstances lessened the seriousness with which the offending should be viewed. According to the Applicant’s evidence he was sent by his parents from Vietnam to Malaysia when he was around 15 years old. He travelled with his brother who was two years older. They spent two years in a refugee camp in Malaysia in conditions the Tribunal accepts would have been difficult for a child without parental support. The brothers then moved to Australia as refugees where they lived with an uncle and aunt. His parents had intended to settle in Australia but due to issues obtaining visas due to the illness of one of the children they eventually ended up migrating to the United States with the remainder of his siblings. His father has since died but his mother and siblings remain in the United States of America.
(see R1, G16; G18, page 74)
The Applicant claims to have fallen in with the wrong crowd in Australia and become involved with a gang in Sydney which led to him leaving the care of his aunt and uncle and to his early offending. There is evidence that he attempted to migrate to the United States to be with his parents but was denied a visa due to his criminal convictions (see R5, page 45; R4, page 62; R4, page 187-188).
In his application for revocation the Applicant stated:
we did not have the best lifestyle growing up. With much schooling and education which has led to a poor literacy school. We both had no support growing up and had to find a way to survive on a line. Due to lack of English and bad childhood there wasn’t much opportunity growing up. For this reason when got into the wrong crowd I got mixed with drugs and my offences occur. But nowadays I’ve also met productive people who
(R1, G25, page 103)
As noted above, the Applicant has also spent 5 years on remand in New South Wales and Perth on murder charges which, for various reasons did not proceed to conviction.
While the Tribunal accepts that the Applicant had difficulties in his life, particularly in his teenage years, those difficulties do not excuse a long history of criminal behaviour. Indeed, the criminal justice system has afforded the Applicant multiple opportunities to reform his behaviour through the imposition of alternatives to custodial sentences including suspended sentences, community service orders. The Applicant has failed to take advantage of those opportunities and has continued to offend.
In confirming the Applicant’s sentence in April 1994 for supplying heroin to an undercover police officer the judge said of the applicant’s early criminal record:
…the appellant has an appalling criminal record for someone who is not yet 22.
Further he committed offences whilst on good behaviour bonds which were aggravating features of his offending. At that time the judge noted that ‘is this not suggested that he was a drug addict who, who like so many others, supplied drugs to support his own habit’. (R1, G16, page 65)
In 2007 Magistrate Beattie noted on revoking the Applicant’s community service order and sentencing him to imprisonment that:
You were effectively given the last chance by the court when you are given the community service order in 2006……. You been convicted of a very serious firearms offence, given a lengthy community service order but it seems to me that no real attempt was made to start work.
(R1, G17, page 67)
Further, the Minister has issued warnings on two occasions to the Applicant that his visa may be cancelled if he continued to offend. As the Applicant was a young adult at the time of the first warning (whether the Applicant received that warning in writing or verbally as he claims) the Tribunal places less weight on his failure to reform his behaviour at that time. However, at the time the second warning was issued the Applicant was in his 30’s and had a young family. His failure to heed that warning suggests a lack of insight into his drug use and his offending.
Having regard to all the evidence including the circumstances of the Applicant’s conduct and offending, the Tribunal finds that the Applicant has a long history of consistent offending including serious drug offences, firearms offences and driving offences. The Tribunal finds that the nature of the Applicant’s offending is very serious and weighs against exercising the discretion to revoke the cancellation of the visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction no. 79)
A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction no. 79 as follows:
(1)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 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).
Senior Member Evans in CZCV and Minister for Home Affairs [2019] AATA 91 summarised the task for the Tribunal as follows:
56. … the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
57. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of re-offending as requiring a “rational and probative basis”
Nature of harm to individuals or the Australian community
The Applicant has a history of offending over a 30 year period, with offences including serious drug offences, weapons offences and offences against public officers. As outlined earlier in this decision, the Applicant has also committed a broad range of other offences including, but not limited to, property offences, drug offences, driving offences and breaches of court orders.
The Applicant submitted that his early offending history was not indicative of the risk of harm to the community he currently presented.
Counsel for the Applicant submitted that while the tender material put forward by the Respondent was indicative of the offences that occurred earlier in the Applicant’s offending history, these offences were not sufficient for the Minister to cancel the Applicant’s visa in 1995 or in 2007. The implication was that this behaviour was not sufficiently serious to warrant cancellation of the Applicant’s visa at that time. With respect the Tribunal does not accept that submission. That the Minister exercised discretion not to cancel visa in 1995 or 2007 does not indicate that the offences were not sufficient for the Minister to do so but rather that the Minister chose not to do so for reasons which are not outlined in the material put before the Tribunal (Transcript, page 118).
Counsel for the Applicant maintained that the offences he committed in the 1990s were not indicative of his behaviour in the years since then and are not characteristic of the risk he would pose the community if he were permitted to remain in Australia. The Respondent submitted that while the Applicant sought to place weight on the fact that the Applicant was not sentenced to imprisonment between 2007 and 2018.:
Between June 2011 and March 2012 the Applicant was convicted of having committed the use of his premises for drug use. He was then in prison between 2012 and 2014, albeit on a charge that was ultimately not pursued. And the offences for which he was sentenced to terms imprisonment were, in fact, committed in 2016.
(Transcript, page 130)
The Tribunal does not accept the Applicant’s submission that his early offences were not indicative of later offending, or of the types of offences which are likely to occur were the Applicant to re-offend. The types of offences for which the Applicant was convicted have remained relatively consistent across the course of his offending.
Further, while Tribunal recognises that there were periods where the Applicant did not offend however the Tribunal also notes that these in part reflect periods when he was in prison or on orders in the community. It is expected that the Applicant would not offend when under such constraints.
The Respondent submitted if the Applicant continues to engage in drug-related offending:
It is likely to involve physical and psychological harm, with adverse consequences for public health, the justice system and general incidents of drug-related crime.’
(Transcript, page 130)
In the Tribunal’s view, should the Applicant commit similar offences to those he has been convicted of in the past, there is a risk that a member of the Australian community may be seriously injured. There is a risk that members of the community will be supplied with drugs which can cause them harm and contribute to drug-related crime in the community.
As noted in the above and in the comments of Stavrianou DJC, drug offences of the kind the Applicant has been convicted on numerous occasions carry a real risk of harm to the broader community both in terms of its extent and its consequences. Further, the Tribunal admitted that his children have been under his care in their home while he has taken drugs. The evidence also indicates they have been present during police raids on the home including when unsecured prohibited weapons were found. In the Tribunal’s view this highlights a real risk the Applicant’s children should he continue to offend in the manner he has in past.
The Tribunal is also concerned that the Applicant has numerous convictions for driving offences, including driving with an expired licence (2010) and driving without authority (2016(x2), 2018). The Tribunal accepts those traffic offences were at the less serious end of the spectrum of offending, resulting in fines and disqualifications rather than custodial sentences. However this does not reduce the serious consequences which can result from such offending. The Tribunal also takes offences involving driving seriously, and notes the serious harm, in terms of injury or death, that road users can suffer as a result of such offences (see, for example, Morris v Minister for Immigration and Border Protection [2018] AATA 3374 at [65]-[66], and Wang and Minister for Immigration and Border Protection [2014] AATA 89 at [7] where Senior Member Bell noted the purpose of such laws, including laws against driving while under a suspended licence, or while disqualified, are to “protect users of the road” and that those “… laws go to the essential safety of the community” ).
Based on the Applicant’s history offending, the Tribunals finds that if the Applicant
re-offends in a manner consistent with his past offending this would likely include serious drug offences including possession and supply of narcotics and weapons offences. Such offences constitute a risk or harm to the Applicant, his family and the broader community. Applying paragraph 13.1.2(1)(a) of Direction no. 79, the Tribunal finds that the nature of harm that could result if the Applicant is to re-offend is serious.Risk of re-offending
The Tribunal must also consider the likelihood of the Applicant re-offending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction
no. 79).The sentencing comments of his Honour Stavrianou DCJ indicate that the court had the benefit of a psychological report relating to the Applicant and a pre-sentencing report. Neither of these are before the Tribunal, however his Honour summarised the findings of the pre-sentencing report as follows:
The author of the pre-sentence report notes under the heading of ‘Assessment’ that you’re able to engage in a meaningful conversation around goal-setting. That, in my view, is positive.
He concluded, the author of the report, that your primary treatment need is related to substance use and suggested that an intensive substance use program was appropriate to achieve abstinence, and that that should be in conjunction with educational program so that your literacy can be improved in your job prospects can be improved.
The author of the pre-sentence report concluded that if you can get lawful employment, avoid negative peers, undergo some psychological counselling, then your risk of re-offending will be significantly reduced. I accept that if all of those factors are in play, that would be the case.
The summary to the report maintains the position of denial. And notes that you appear to take a victim stance. Now, that victim stance has its genesis in the fact that you spent five years in custody for offences which ultimately did not proceed to conviction one way or another.
(Emphasis added.)
(R1, G18, page 77)
In relation to the psychological report , his Honour noted:
The author of the pre-sentence report notes that you are pre-occupied in regard to feeling repeatedly victimised and disadvantaged by the police and the legal system. The author of report, the psychological report, I’m sorry, that was the author of the psychological report, notes that there are significant risk issues in relation to you, one of those being obviously the involvement with substances.
The recommendation to the psychological report is that any intervention that would be able to address your isolation and restriction would be potential benefit, including education in language and employment. Substance abuse monitoring will be imperative in managing re-offending risks. Any intervention able to target unhelpful cognitions, mood management, inactivity and problem solving skills will be of potential benefit. That’s what the psychologist indicated.
So it’s clear that your principal difficulties stem, as your counsel very appropriately has acknowledged, from your substance abuse which is of long-standing.
(Emphasis added.)
(R1, G18, page 78)
During the hearing it was put to the Applicant that he had made undertaking to stop offending in the past and had continued to do so. The Tribunal asked the Applicant why it should accept that if he was given another chance the Applicant would not re-offend.
TRIBUNAL: I am concerned that when you look at your history of convictions, that you’ve been given lots of chances but you haven’t taken those up. What would you save to the Tribunal about why I should accept that you – this time it would be different?
APPLICANT: Because I was young then. I did not understand many things. Now my children have grown up. I don’t want my children to see the mistakes which I did, which would affect my children.
TRIBUNAL: But you won’t young when you committed your most recent offences were you?
APPLICANT: Sorry?
TRIBUNAL: .. you were not young when you committed your most recent offences.
APPLICANT: I still had a lot of difficulties then though
TRIBUNAL: How would those difficulties be different now?
APPLICANT: Different
TRIBUNAL: In what way?
APPLCIANT: I’m married with children. And my wife.Children, wife. Friends. Help me in my living. Help me work.
(Transcript, pages 70-71)
In his Statutory Declaration the Applicant stated:
Since coming to prison, I have taken courses to learn how to stay off drugs. I have attended regular meetings of Narcotics Anonymous while in Acacia Prison. I have attached a certificate that shows I have attended recovery from addiction meetings while in prison.
Attending Narcotics Anonymous has been really helpful for me. The course exposes us to all the reasons why people get into drugs and what drug abuse can cost us.
(A2, paragraphs 9-10)
The Applicant also stated he had become a Christian and was attending Bible studies and church services:
I have also taken part in the chaplaincy program at Acacia prison. I have attached a certificate from my Senior Pastor Quang Ly of the Vietnamese Evangelical Church of Australia.
I attend church every week and I attend Bible class for this study classes. I became a Christian about a year ago, through my involvement with a number of people in the prison who attended church services. I wanted to become a Christian because I wanted to change and develop myself; the other Christians around me helped me to understand, to change my life for the better and to do the right thing.
The church brings people to the prison who have had lives like me, who were alone or had family breakdowns. These people speak about how they tried to do the right thing and build a better life, overcoming the difficulties. Hearing these people is very meaningful for me; it helps me think that I can do the same thing.
…
The Church and the Bible encourage me to stay off drugs, and to do the right thing.
(A2, paragraphs 11-16)
In his letter, attached to the Applicant’s Statutory Declaration, Pastor Quang notes:
We are running a chaplaincy program at Acacia prison that involves a weekly Bible study program, counselling and rehabilitation to allow for members to assimilate to society. [FTDN], born 29 April 1972, has been attending this program for over a year. During this time of seeing him weekly, we have witnessed an immense maturity in his character. Since accepting Jesus Christ he has developed discipline in reading and learning the Bible. His personality has become more joyful and he is less inclined to react angrily in confrontational situations. He shown a desire to be part of a community and build others up in a positive way.
(A2, Attachment B.)
Counsel for the Applicant also stated that ‘he has departed from the victim stance’. (Transcript, page 118). Further, the Applicant maintained under cross-examination that he did not intend to associate with persons he had been involved with at the time of his most recent offending. The Applicant submitted this was one of the steps he has taken towards rehabilitation.
The Tribunal also notes that in submissions to the Department the Applicant maintained that he had not been able to undertake more extensive intervention courses including the “Pathways” course due to the length of his sentence and competing demands for limited resources. This is consistent with the Treatment Assessment Report and the Prisoners Review Board reports referred to below and the Tribunal accepts the submission. The Applicant also claimed to be on a waitlist for the ‘Green Light” Course. (R1, G31, page 118).
The Applicant has expressed remorse for his past offending and drug use:
I know that it is difficult to trust me on this because I have broken the law before. But am trying to do everything in my power to stay off drugs and make sure I can be there for my family. I’m not doing these courses to avoid having to go back to Vietnam; I’m doing them so I can take care of my children. I don’t want to cause pain to my children by causing them to lose out on having a decent family life.
(A2, paragraph 18)
In his application for revocation to the Department the Applicant stated:
In Australia as a refugee since 1987 I have made this country home. I have gain a permanent residential visa will when I first arrived. We also have a wife and six children which are all the Australian citizens. I have been in this country all my life and would really like to continueing [sic] on staying here with my family, to guidance for my children and see them grow up and become productive members of society. I know I haven’t been the best role model due to my drug abuse/offences, but it is something that I am working hard towards to better my future and my family so please do not punish my children and have them grow up without a father for my mistakes.
(R1, G24, page 94)
The Applicant has made promises to reform and to stay off drugs in the past. This has included participation in court ordered treatment programs (R5, pages 36-38; R5, pages 98, 108; R4, page 311). While the Applicant has claimed at various points to have been drug free, his offending history and the reports referred to above suggest his drug use is consistent and of long standing. There is no evidence before the Tribunal that the Applicant has undertaken any drug treatment programs while serving his current prison sentence or any psychological counselling of the sort identified in the reports. Although it is encouraging that he has attended 12 Narcotics Anonymous meetings, his Counsel conceded there was no evidence that these meetings amounted to a treatment program (Transcript, page 119).
The Tribunal notes the Applicant was refused bail by the Prisoners Review Board of Western Australia on 9 October 2018 (R4, page 237). The Prisoners Review Board noted:
1Your unmet treatment needs (substance abuse and consequential thinking) as evidenced by the nature of your current offences and your criminal history. The Board notes that you have not been assessed for any intensive treatment programmes whilst in custody due to the backdating of the current sentence.
2A criminal history spanning two States of Australia, an extensive history in New South Wales which involves serious drug related offending, violence and weapons
3….
(R4, page 237)
The Prisoners Review Board also noted the revocation proceedings were underway and that once the matter was finalised the Applicant could re-apply to the Board for further consideration. The Board noted:
The Board may consider a re-application request if you are able to demonstrate a particular change in circumstances and have reduced your risk of re-offending and risk to the safety of the community.
(R4, page 237)
A Treatment Assessment Report conducted on 12 November 2018 in Hakea prison indicates that the ‘Risk of Reoffending-Prison Version’ assessment screening tool was administered with regard to FTDN. This process assessed the Applicant to be “a low risk of general re-offending” and as such not recommended for community programs at that time (R4, pages 247-249). While the Tribunal notes that the Applicant was not interviewed for the purposes of the report (R4, pages 247-249). The Tribunal notes that there is limited information on the material to suggest the basis for the assessment. As such the Tribunal places less weight on the report than on the assessment of the Prisoners Review Board as to the Applicant’s suitability for release and risk of re-offending.
Counsel for the Applicant conceded that the Applicant had made promises in the past to stop offending. However Counsel argued that his present circumstances were very different from when his previous undertakings had been given and that his circumstances need to be considered based on the most up-to-date information available. In this regard Counsel for the Applicant submitted:
The distinguishing factor, in the Applicant’s submission, is simply that the nature of the potential risk to his children, at present, from the potential removal of
[FTDN] and from the potential imprisonment of his wife in circumstances where there are no alternative care arrangements is so far distinct from what has been encountered in the past that he does deserve to be treated differently and that it has prompted a realisation on his behalf that hasn’t previously been there.(Transcript, page 117)
The issue of the care of FTDN and his wife’s criminal charges are dealt with further below.
The Respondent submitted that:
It’s not disputed that he has a significant history of drug abuse, using heroin, cocaine and methamphetamine. The claimed support networks that he claims he would have if he were to remain in the country, are consistent with the previous support networks that were available to him. His wife is unlikely to be a protective factor in circumstances where she also uses or used drugs, and has been convicted of at least two-related crimes.
(Transcript, page 131)
Further, with respect to the Applicant’s submission that the current need to provide care and support for his children in face of the potential absence of their mother was a factor which would lessen the likelihood of the Applicant resuming drug use and re-offending the Respondent submitted that:
His past behaviour also demonstrates that his children have simply not been a protective factor in the past. He has admitted to using drugs whilst the children were in his care. And then subsequent to having been warned of the potential consequences of offending on his visa status, and going through a period of time where his children had to be cared for by his brother as a result of both he and his wife being in prison, he continued to offend.
(Transcript, page 131.)
It is not clear to this Tribunal what the effect is of the qualifying final words in [42] of the above decision. However, having regard to the context of the comments, in the Tribunal’s view, they go some way to bridging the gap between the extreme versions of the broad and narrow approaches. Having found that the “norm” is that the expectations of the Australian community are that where paragraph 11.3 applies to an Applicant’s circumstances, that is by reason or the Applicant’s commission of serious criminal offences it may be appropriate that the Applicant not hold a visa. His Honour leaves open the possibility that that may not be so in all cases.
In practical terms and having regard to the authorities, the Tribunal broadly agrees with the approach articulated by Member Eteuati, in Doan. The Tribunal notes that with respect to determining whether “the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa” (the third sentence of paragraph 13.3(1) of Direction 79) close consideration of the direction indicates that where a non-citizen has committed a ‘serious crime’ the expectation is that their visa will be cancelled. This is the import of paragraph 6.3(2) of
Direction no. 79 which was cited in the passage of Uelese to which Mortimer J was referring in YNQY (see [170] above]. Further, Direction no. 79 provides that particular crimes or those committed against particular victims will be regarded as ‘serious’,[9] or are to be ‘viewed very seriously’.[10] In circumstances where the relevant non-citizen has committed a ‘serious crime’ the government’s view on the expectation of the community has been expressed to be that they expect the non-citizen’s visa to be cancelled.[9] See for example Direction No.79 paragraph 13.1.1(1)(c).
[10] See for example Direction No.79 paragraph 13.1.1(1)(a) and (b).
It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view as to the expectations of the Australian community as expressed in paragraphs 6.3(2) and 13.3(1) of
Direction no. 79. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed by the Minister, they weigh against revocation with respect to ‘serious crimes’. However, it remains for the Tribunal to determine whether “the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa” having particular regard to the direction and to determine, in all the circumstances, what constitutes appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.The Tribunal has found that the Applicant’s offending is serious. The Tribunal accepts having regard to paragraphs 6.3(2) of Direction no. 79 that Australian community expects that the Applicant’s visa can and should be cancelled in such circumstances. Having regard to the relevant authorities and applying the direction in this way, the Tribunal finds that the expectations of the Australian community weigh against the revocation of the cancellation decision.
Although the expectations of the Australian community will weigh against an Applicant with respect to serious crimes the Tribunal must, in the exercise of its discretion, decide how much weight is to be given to this consideration in the process of weighing up the primary and other considerations.
The weight to be applied to this consideration in view of all the circumstances of the Applicant’s case is considered further below.
Other considerations
Paragraph 14 of Direction no. 79:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations 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;
e)Extent of impediments if removed.
International non-refoulement obligations
The Applicant’s written submissions to the Department conceded that while the Applicant had previously been granted a protection visa the passage of time may mean he is no longer at risk of harm if returned to Vietnam. However the Applicant submitted and raised an issue of the potential discrimination (‘positive discrimination’) against the Applicant if returned to Vietnam due to the fact his family fled as refugees and were politically opposed to the Communist regime in Vietnam (R1, G31, page 120) giving rise to the question of whether any non-refoulement obligations arise (paragraph 14.1,
Direction no. 79).
On his application for revocation in response to the question regarding whether or not he had concerns or fears about what would happen to him on return to his country of citizenship he ticked no and stated:
Not for myself but the devastation that it would cause my family.
(R1, G25, page 105)
Consistent with this statement, at the Tribunal stage, Counsel for the Applicant submitted that the Applicant did not seek to raise any claims for protection or fears of harm on return to Vietnam in the context of this application. Counsel for the Applicant made it clear that the Applicant was reserving any right he may have to make a future application for protection and submitted the Tribunal should not make any findings with regard to
non-refoulement obligations which might impact any such claim. The Respondent’s submitted that the Applicant would not be barred from making a protection visa application (R2, paragraph 62).
The Tribunal indicated to Counsel for the Applicant that it did not understand that any decision maker looking at an application for a protection visa by the Applicant would consider itself bound by the Tribunal’s consideration of the matters relevant to this application. In any event, there was no evidence before the Tribunal giving rise to questioning regarding non-refoulement.
The Tribunal is satisfied that non-refoulement issues do not arise on the evidence before it.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction no. 79 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
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 non-citizen 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 people who have an indefinite right to remain in Australia, including the effect of nonrevocation 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).
Relevantly, paragraph 6.3(5) of the principles section of Direction no. 79 states:
(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.
Additionally, paragraph 6.3(7) of the Principles section of Direction no. 79 states, in part:
(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.
The Applicant is now 47 years of age, having arrived in Australia in 1987 when he was
15 years of age.The Tribunal finds that he arrived as a teenager and has spent most of his life in Australia (paragraph 14.2(1)(a) of Direction No. 79). He commenced offending just over three years after arriving in Australia (paragraph 14.2(1)(a)(i) of Direction no.79).
There is no evidence before the Tribunal that the Applicant has positively contributed to the community in any particular way (paragraph 14.2(1)(a)(i) of Direction No. 79). The evidence suggests he has been ‘rarely employed’ (R4, page 263). His Honour Stavrianou DCJ noted that since 2008 he had supported himself through cash employment and drug dealing (R1, G18, page 74). While there is some evidence he has been employed from time to time there is no evidence of activities which might be said to mark, or evidence a particular contribution to the community (see for example R4, page 263).
Counsel for the Applicant submitted:
As to the question of the strength, nature and duration of the Applicant’s ties to the Australian community, [FTDN] has lived in Australia for more than 20 years. He has much stronger connections to the Australian than he does to any other country. He left Vietnam as a teenager, without the support of his parents. He has visited Vietnam twice in that period, but is evidence is that he has no ongoing, substantial connections to that country. His closest family relationships are in this right country. His friend’s network and support networks in this country. Save for the fact of his citizenship, he lived in this country for more than 30 years.
(Transcript, page 122.)
The Applicant stated in his application to the Department for revocation of the visa cancellation:
All my children and partner are Australian citizens and will be living and growing up here for the rest of their lives. I as a father would like to be a big part of my family’s life as they grow up to be able to support them and mentor them as they become men’s and women [sic]. I have been here since I was a teenager and my family are all here or in America. My life has been in Australia and I’ve learnt everything I know growing up here; how to be a gentleman, a provider and supporter for my family most of all. I believe that without a father figure for my children they will grow up with a different attitude and life morale. My children are my everything the reason to do better to be able to be there and provide for them until the day they have a family of their own. They are all very anxious and worried about my current situation as im a very big part of their lives on a daily basis and they also do not want to lose their father. I hope that my life and family priorities appeal to you in a genuine manner as everything that I have said is true and it would not benefit my children growing up without a father. Please consider reinstating my Visa so I can be there with and for my family and be the man and father they deserve.
(R1, G25, page 106)
The Tribunal accepts the Applicant is in a longstanding relationship with his wife, who is an Australian citizen, and has six children who are Australian citizens.
In her Statutory Declaration dated 26 April 2019 Ms Diem Nguyen, notes she met the Applicant in around 2000 or 2001 which was around the time they moved in together.
Ms Nguyen noted:
I have a very strong relationship with [FTDN]. He is the love of my life. We rely on each other. If either one of us is not there, the other one struggles to make sure that our kids are safe and that the kids have everything they need. We do whatever we can to support each other, to support our kids and to make sure that our kids don’t live miserable lives.
I know the clock has been convicted of a serious offence. [FTDN] and I both acknowledge that this is a serious offence. I feel very bad about [FTDN] what [FTDN] did. [FTDN] has said to me that this has been a wake-up call for him, and he takes all of this extremely seriously; that is why he has tried to take part in rehabilitation courses in prison.
I would be devastated if [FTDN] was sent back to Vietnam. This is always in my mind, and it is always a horrible question that I asked myself all the time. I need him for emotional support and because of all of the love and support that he provides to our family. Without him he would be so painful and stressful, and I would be so lonely.
I am so worried about what will happen if [FTDN] goes back to Vietnam. He has no country now I the only country that supported him when he escaped from Vietnam was Australia. If they deported him back to Vietnam, I am really worried that he would be punished or executed for betraying Vietnam by going to another country.
Things have been very difficult for us since [FTDN] has been in prison. I was pregnant with Nathan when he was sent to prison; it was a difficult pregnancy with diabetic ‘pre-eclampsia and I struggled so hard to go through all of this without [FTDN]. It is been very difficult for me and my children without his presence and emotional support.
[FTDN] was the main financial support for a family. Without his payments, we struggle to pay the rent every week. We are very lucky that when know the landlord and that she sometimes lets us fall behind on the rent. Sometimes we struggle to buy groceries for the household every week.
The Tribunal finds that the Applicant has ties to the Australian community. This includes evidence of his more recent ties he has formed to the Church community in prison. The Tribunal accepts that the Applicant’s family loves him and is desirous of assisting him. The Tribunal accepts that the Applicant’s family, and in particular his wife, step-son and daughter who gave evidence before the Tribunal, may suffer some emotional hardship as a result of the Applicant returning to Vietnam. The Tribunal also accepts that the Applicant’s wife and family may suffer some financial hardship if the Applicant returns to Vietnam, although there is limited evidence of this other than the Ms Nguyen’s statutory declaration to that effect.
The Tribunal places weight on the fact that the Applicant has been in Australia for an extended period of time and most of his family ties are in Australia. The Tribunal accepts that he has no identified family in Vietnam other than his wife’s father and some of her siblings. This weighs in favour of the revocation of the Reviewable Decision.
Impact on Australian business interests
There is no evidence before the Tribunal that a decision not to revoke the cancellation of the visa will have a relevant impact on Australian business interests (paragraph 14.3(1) of Direction no. 79).
The Tribunal does not place weight on this consideration.
Impact on victims
The Tribunal does not have sufficient information before it to assess the impact of a decision not to revoke the cancellation of the Applicant’s visa on the victims of his offending or the family members of the victim (paragraph 14.4(1) of Direction no. 79).
There is no evidence about the impact on members of the Australian community more generally. Aside from the risks of harm to the community of which are discussed above in the context of the protection of the Australian community, the Tribunal finds that there is likely to be little, if any, specific impact from a decision not to revoke the visa. Accordingly, the Tribunal places no weight on this consideration.
Extent of impediments if removed
Paragraph 14.5(1) of Direction no. 79 provides:
(1) 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:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Applicant arrived to reside in Australia in 1987 at 15 years of age. His Counsel submitted:
The Applicant has said he does not know what would happen if he went back to Vietnam. It’s open for the Tribunal to conclude that this ground does not arise for determination, but in circumstances where the Tribunal is not required to assess this ground, I submit that the Applicant makes no concession as to whether he is or is not non-reform and obligations [sic], which obviously has both a subjective and objective component. So, I think that no adverse determination be made in this regard to preclude any future application for protection visa the Applicant would be entitled to make.
(Transcript, page 122.)
So the Applicant will be returning to be, some effectively no substantial ongoing ties to the country, save for the fact that it may citizenship and save for the fact he does speak Vietnamese as a first language. And so the circumstances he would base upon return to considered in light of the prevailing economic conditions in the country.
(Transcript page 124.)
Of the circumstances facing the Applicant in Vietnam, his counsel submitted:
There is a lack of healthcare for near poor and lower income people. There is a lack of social support for near poor and lower middle income people. While there are social security nets for truly destitute people, there is no indication that the Applicant would be avail himself of these in light of uncertainty as to the circumstances he would face, and in particular in light of the fact that it is unclear that he would have support networks or that he would indeed be able to navigate the processes for gaining the support. This furthermore, lower expenditure on social assistance schemes in Vietnam more broadly.
So if you were to arrive in Vietnam, there cannot be an expectation that he would receive state support sufficient to allow him to overcome the initial burdens that he would face as someone arriving in a country to which he would effectively be a stranger. He has visited twice in the past; those visits should not be considered to familiarise him with contemporary Vietnam, with the processes involved in seeking employment in that nation, or indeed with any ability to seek employment – with any ability to establish himself in a meaningful and substantial way.
Counsel for the Applicant drew the Tribunal’s attention to excerpts from the Growth that Works for All: Viet Nam Human Development Report 2015 on Inclusive Growth, UN Development Program. In summary the Applicant submitted (A1, pages 17-19) that the relevant observations from the report included that:
·Informal support networks in Vietnam had begun to ‘wither away’ due to internal migration. (A5, page 109) This would render the Applicant further reliant on the state for support;
·A significant share of Vietnamese remain vulnerable to poverty with around 86 per cent classified as ‘poor’ in 2012 (A5, page 111). The Applicant’s ability to subsist in an environment of widespread poverty and substantial competition for employment would be threatened;
·People in the lower middle and near poor categories in the Vietnamese economy struggled to meet their needs (A5, page 112). As even Vietnamese citizens were not classified as poor can struggle the Applicant is likely to suffer greater difficulties particularly if he cannot gain or loses employment;
·Health insurance in Vietnam reaches 75% of the population however there are significant gaps including a lack of formal coverage for near poor and lower-middle income people (A5, page 113). It cannot be assumed that the Applicant would have affordable, sustainable access to effective health care if he moved to Vietnam;
·
Vietnam’s social welfare system is overwhelmingly skewed to those living in poverty (A5, page 115). If the Applicant were to suffer poverty by Vietnamese standards social welfare would only alleviate what would be a substantial impediment for the Applicant. If he does not meet the threshold for social security assistance he would suffer inadequate protection from social shocks
(A5, page 122);
·Most people in Vietnam do not enjoy social protection coverage (A5, page 140) and being a stranger to Vietnam the Applicant would not be able to rely on either informal networks for support or on the Vietnamese State in re-establishing himself in what amounts to a new country.
The Respondents submitted that as a citizen of Vietnam, the Applicant has the same access to social and economic supporters as other citizens (including eligibility to Social Security benefits) (R2, paragraph 57). The Respondent also noted that Direction no.79 requires that the Tribunal have regard to the context of what is generally available to Vietnamese citizens.
It is clear that Direction no. 79 refers to the context of services available to citizens generally in the country to which the person is being returned. While this would not preclude the Tribunal from having regard to particular impediments the Applicant may face in that context, it does, in the Tribunal’s view mean that the lack of equivalent social welfare or other services in a country will not of itself amount to an impediment if removed.
The Applicant would not face any language barriers if he were to return to Vietnam. However, Counsel for the Applicant submitted he is not familiar with contemporary culture in Vietnam (see also Statutory Declaration of the Applicant, R2, paragraphs 25-26). While the Tribunal accepts he has spent most of his life in Australia and is more accustomed to the environment in this country, the Tribunal notes he has visited Vietnam twice as an adult for around a month each time and he expressed no cultural concerns on return.
Further there is no evidence before the Tribunal that the Applicant suffers from any medical conditions which require ongoing treatment which cannot be accessed in Vietnam. Certainly he has a substance abuse problem and pre-sentencing and psychological reports have identified he would benefit from counselling or other treatment to address the causes of his offending. However, there is no evidence such services could not be accessed in Vietnam. Further there is no evidence that the Applicant has plans to access such services if he is not removed. It follows that the issue of such services is not an impediment to removal.
The Applicant lacks skills and experience for work, other than general labouring jobs he has completed. He has had limited employment in Australia and the Tribunal accepts that he may struggle to find work in Vietnam. The Applicant submitted that the potential difficulties for the Applicant in obtaining employment in Vietnam would impact his ability to financially support his family in Australia. In this regard the Tribunal notes that the evidence establishes the Applicant has supported himself in cash employment and dealing drugs in Australia, at least since around 2008 (R1, G18, page 74). In circumstances where the Applicant has sought to derive an income in Australia from unlawful means over an extended period, the Tribunal places little weight on the challenges he may face to find suitable employment in Vietnam that would enable him to replicate that income.
Further, the Applicant’s evidence was that he travelled twice to Vietnam to visit his mother when she was visiting there from the United States of America. This suggests an ongoing connection to Vietnam at least on the part of the Applicant’s mother. Further, Ms Nguyen testified that her father and two of her siblings live in Vietnam and while she does not have contact with her father she does have occasional contact with her siblings (Transcript, page 103). She testified that she visited them with Jasmine in 2004 when her mother was still alive (Transcript, page 104). The Tribunal finds it would be open to the Applicant to seek some assistance from his wife’s family in Vietnam to assist him to establish himself there.
Having regard to the evidence, the Tribunal finds that Applicant would suffer some hardship if he were returned to the Vietnam, in particular having regard to the length of time he has spent in Australia, his lack of family support in Vietnam and the likely economic challenges he would face in Vietnam. This weighs in favour of the revocation of the decision to cancel the visa.
WEIGHING THE PRIMARY AND OTHER CONSIDERATIONS
Direction no. 79 provides some guidance as to how a decision maker should apply the primary and other considerations and the weight to be given to them. Paragraphs 8(3), (4) and (5) are relevant here, and state:
(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.
The treatment of primary and other considerations has been subject to judicial consideration.[11]
[11] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Suleiman was discussed by the Full Court of the Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217 (HSKJ).
Senior Member Evans in CZCV and Minister for Home Affairs [2019] AATA 91 at [164] summarised the weighing exercise as considered by the Courts as follows:
The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving another consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so.[12]
[12] Although Senior Member Evans was considering Direction no.65 the relevant provisions were materially the same as those under Direction no. 79 and her comments remain applicable under the later direction.
The Tribunal agrees with this statement of the principles to be applied in the weighing exercise and has had regard to these principles in balancing the primary and other considerations in this decision, which are summarised in the conclusion below.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act.
The Tribunal has also considered whether there is another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations in Direction no. 79.
In determining the weight to be applied to each consideration, the Tribunal has regard to all the Applicant’s circumstances, including his long history of offending and his attempts at rehabilitation. The Tribunal has considered all the primary considerations, including the serious nature of the offences committed by the Applicant and the risk of harm to the community were he to reoffend. The Tribunal has had particular regard to the fact the Applicant has been afforded opportunities in the past by the criminal justice system and by the Respondent to change his behaviour. He has repeatedly failed to do so notwithstanding the responsibilities he has had to his children for much of the time he has been offending. The Tribunal has also had regard to the Applicant’s current demonstration of remorse and his stated commitment to rehabilitation. Considering these factors, the Tribunal has found that the protection of the Australian community weighs against revocation.
The Tribunal has also found that the expectations of the Australian community weigh in favour of the Tribunal refusing to revoke the cancellation of the visa (that is, affirming the Reviewable Decision).
The Tribunal has considered carefully the best interests of the Applicant’s three minor children. The Tribunal accepts that, on balance, the best interests of the children are that the cancellation be revoked. However, the Tribunal has found that this will only be the case if the Applicant ceases taking drugs and does not reoffend in a manner similar to his past history. The Applicant’s past actions have placed his children in a perilous position. He has historically failed to have proper regard to their safety and wellbeing and his criminal activity has placed them at risk. At least with respect to her prior convictions the actions of the children’s mother have contributed to that risk. Given the Tribunal’s findings on the likelihood the Applicant will reoffend and in a manner that places the children at risk of harm, the Tribunal places less weight on this primary consideration than the others mentioned above.
The Tribunal has had regard to the relevant other considerations, including the strength, nature and duration of the Applicant’s ties to Australia and the challenges the Applicant would face if he was returned to Vietnam, which weigh in the Applicant’s favour.
While the children’s interests are best served by the Applicant remaining in Australia, the Australian community is not best served by his remaining here. He has shown an unwillingness or inability to change his offending behaviour and cease both his personal and financial reliance on drugs in order to comply with the laws of Australia. This has made him an unacceptable risk to the community. Having regard to all the circumstances of the Applicant’s case, the Tribunal is of the opinion that the primary obligations of protection of the Australian community and the expectations of the Australian community outweigh the other considerations that are in favour of the revocation of the decision to cancel the visa.
In summary, having regard to all of the relevant primary considerations, and the relevant other considerations in Direction no. 79, the Tribunal is of the view that it would not be appropriate for the Tribunal to exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa. The correct and preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of the Respondent’s delegate dated
20 February 2019 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.I certify that the preceding 238 (two hundred and thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Member
S Burford..........................[sgd]............................................
Associate
Dated: 16 May 2019
Date of hearing: 9-10 May 2019
Counsel for the Respondent:
Mr McDonald-Norman
Solicitors for the Applicant:
Counsel for the Respondent:
Myvisa Immigration Law
Ms Elle Tattersall
Solicitors for the Respondent:
Sparke Helmore
Direction no. 79 – Visa refusal and cancellation under
s 501 and revocation of a mandatory cancellation of a visa under s 501CA (20 December 2018)
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Jurisdiction
-
Procedural Fairness
-
Statutory Construction
-
Natural Justice
3
10
0