GNRK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 250
•5 February 2021
GNRK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 250 (5 February 2021)
Division:GENERAL DIVISION
File Number: 2020/7684
Re:GNRK
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Member R Maguire
Date:5 February 2021
Date of written reasons: 17 February 2021
Place:Brisbane
the reviewable decision is affirmed.
..............................[SGD]..........................................
Member R Maguire
Catchwords
MIGRATION – Migration Act 1958 (Cth) – refusal to grant Bridging Visa E (Class WE) – Applicant applied for Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) Visa – where Applicant does not pass character test – whether there is another reason to not exercise discretion to refuse visa – consideration of Ministerial Direction No.79 – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Drugs Misuse Act 1986 (Qld)
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
HMDS and Minister for Immigration [2020] AATA 1634
Khalil v Minister for Home Affairs [2019] FCAFC 151
Lester v The State of Western Australia [2011] WASCA 128
Peter Uelese v Minister for Immigration and Border Protection and anor (2015) 156 CLR 203, [2015] HCA 15
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Western Australia v Yeates [2018] WASCA 232
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
REASONS FOR DECISION
Member R Maguire
17 February 2021
introduction and background
The Tribunal made an order under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to prohibit the publication of the name of the Applicant in this matter. He will be referred to by the pseudonym, “GNRK”. The identity of certain other persons will also be an anonymised, lest the disclosure of their names have the effect of identifying the Applicant.
The Applicant lodged a Bridging Visa E (Class WE) application in association with a combined application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa on 18 August 2020.[1]
[1] Exhibit G1, G Documents G12 at page 57.
On 21 November 2020, the Applicant applied to this Tribunal[2] for the review of a decision of a delegate of the Minister (“the Respondent”) dated 9 November 2020[3] under subsection 501(1) of the Migration Act 1958 (Cth) (“the Act”), to refuse to exercise the discretion to grant the applicant a Bridging E (Class WE) visa. This Tribunal has jurisdiction to review the decision in consequence of section 500(1)(b) of the Act as the decision was not notified to the Applicant in accordance with section 501G until 13 November 2020, and the application to this Tribunal was made within 9 days of that date as required by section 501(6)(B) of the Act. The Tribunal has jurisdiction to consider this application in consequence of section 500(1)(b) of the Act and section 25(1)(a) of the AAT Act.
[2] Exhibit G1, G Documents G2 at page 3-9.
[3] Exhibit G1, G Documents G3 at pages 10-24.
Section 501 provides the Minister with a discretion to refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record as defined by section 501(7). Relevantly, section 501(7) states:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, with the total of those terms is 12 months or more;…
Section 501(7) provides that for the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total of the terms.
Section 501(12) defines “imprisonment” as follows:
imprisonment includes any form of punitive detention in a facility or institution.
On 10 October 2019, the Applicant was convicted by the Queensland District Court at Brisbane constituted by Jarro DCJ, of offences, and received associated concurrent sentences as follows:[4]
·Possessing dangerous drugs Schedule 2 drug quantity of or exceeding Schedule 3 (on 14 September 2016) - imprisonment: three years to be suspended for four years after serving 10 months;
·Produce Schedule 2 Drug – imprisonment nine months;
·Possessing anything for use in the commission of crime defined in part 2 – imprisonment for three months.
[4] Exhibit G1, G Documents G5 at page 27 – 30 at 30; Ibid G Documents G3 at page 17, para 7; Exhibit G1 G Documents G6 at page 31.
It can be seen that the total of the term of imprisonment ordered to be served by the Applicant was four years, and that the sentences imposed more than meet the requirements of section 501(7)(c), and the Tribunal is satisfied that the Applicant therefore does not pass the character test by virtue of section 501(6)(a) of the Act.
In addition, the applicant does not dispute that he has committed serious drug offences and does not pass the character test,[5] and seeks to have the decision set aside on discretionary grounds.
[5] Exhibit G1, G Documents G10 at page 44; Exhibit G1, G Documents G12 at page 58: Exhibit A1, Applicant’s Statement of Facts Issues and Contentions
The only issue before the Tribunal is therefore whether the correct or preferable decision is to refuse to grant the applicant the visa. In exercising its functions and powers under the Act, the Tribunal is bound by section 499(1) of the Act to follow Ministerial Direction No. 79. (hereinafter referred to as “the Direction”).
Procedural history of this matter
This matter was originally listed for a two day hearing scheduled for 21 & 22 January 2021. It’s 84th day was Friday, 5 February 2021. The final hearing was held on both 21 & 22 January 2021 however on the second day of hearing (22 January 2021) it was adjourned to Tuesday, 2 February 2021 for a third hearing date. This further adjournment was necessitated by the Tribunal’s preference to allow the Applicant the opportunity to adduce further written evidence from the Applicant’s witness, Dr Chan. In fairness to the Applicant and out of an abundance of caution, the Tribunal adjourned the hearing to Tuesday, 2 February 2021 to allow receipt of that written material in a manner that did not contravene sections 500(6H) and 500(6J) of the Act.
The evidence of Dr Chan continued before the Tribunal on 2 February 2021. Given the adjournment of the final hearing of this matter, the Member formed the view that the most thorough review of the evidence and the most detailed written reasons could not be safely provided in time to meet the 84 day deadline. Based on the Tribunal’s intention to consider the material as fulsomely as possible and to deliver an appropriately detailed decision, the Tribunal published its Decision in this application pursuant to section 43(1) of the AAT Act on Friday, 5 February 2021. In so doing, the Tribunal also met the requirements of section 500(6L)(c) of the Act. Attached to these Reasons and marked “Annexure B” is a true and correct copy of that Decision.
In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs [2019] FCAFC 151 (“Khalil”), the Tribunal now publishes the written Reasons to the parties. In Khalil, the Full Federal Court said:
“41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271-273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.
…
48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…”
[Tribunal’s underlining]
Ministerial Direction No. 79
Section 499(1) provides that the Minister may give written directions about the exercise of functions or powers under the Act. On 20 December 2018, the then Minister for Immigration, Citizenship and Multicultural Affairs (who is jointly authorised with the Minister for Home Affairs to administer the Act) made a direction under section 499, namely Direction No.79 (hereinafter referred to as “ the Direction”) which commenced on 28 February 2019. Section 499(2A) of the Act requires that the Tribunal must comply with the Direction in considering this matter.
The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[6]
1Informed by the principles in paragraph 6.3 above, a decision maker:
…
(a)must take into account the considerations in …. Part B where relevant in order to determine whether a non-citizen will forfeit the privilege of being granted,… a visa;
[6] The Direction, sub-paragraph 7(1)(b).
In paragraph 6.2(3) of the Preamble, the Direction provides:
3The principles provide a framework within which decision-makers should approach their task of deciding whether to… refuse a non-citizen’s visa under section 501… The relevant factors that must be considered… in making a decision under section 501 are identified in … Part B … of this Direction.
The principles referred to in paragraph 6.2(3) are found in paragraph 6.3 of the Direction, and may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizen’s 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 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 the 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 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 the visa application refused.
Paragraph 7 of the Direction requires a decisionmaker to take into account the considerations in (of present relevance) Part B in order to determine whether a non-citizen will forfeit the privilege of being granted a visa.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case, and importantly, a visa Applicant should have no expectation that a visa application will be approved. Paragraph 8(2) provides that in applying these considerations, information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 8(3) provides that both primary and other considerations may weigh in favour of, or against, refusal of a visa. Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations.
Three primary mandatory considerations relevant in the context of a decision to refuse a non-citizen’s visa appear in Part B of the Direction at paragraph 11:
(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.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 12 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims;
(d)Impact on Australian business interests.
The Tribunal notes and emphasises the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[7]
…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[7] [2018] FCA 594 at [23].
The Tribunal now turns to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering Primary Consideration A, paragraph 11.1(1) of the Direction compels decision-makers to 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, and that there is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. The paragraph also stipulates that decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizens conducted to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to factors including those set out in paragraph 11.1.1(1) of the Direction:
(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)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
(e)the principal that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
(f)subject to paragraph (b) above, the sentence imposed by the courts for a crime or crimes;
(g)the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(h)the cumulative effect of repeated offending;
(i)whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The first step is considering the nature and seriousness of the non-citizen’s conduct to date. Such conduct must be measured in accordance with paragraph 11.1.1 of the Direction having regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from the following documents before the Tribunal:
(a)his criminal history which appears in a document called “Check Results Report” from the Australian Criminal Intelligence Commission;[8]
(b)the Transcript of Proceedings in the District Court of Queensland on 10 October 2019;[9]
(c)the Integrated Offender Management System Sentence Calculation Details report from the Queensland Department of Corrective Services dated 21 October 2019;[10]
(d)the Queensland Police Service Charge List dated 19 December 2016;[11] and
(e)the Vietnamese Criminal Record Certificate dated 15 March 2016.[12]
[8] Exhibit G1, G Documents, G4 at pages 25-26.
[9] Exhibit G1, G Documents, G5 at pages 27-30.
[10] Exhibit G1, G Documents, G6 at pages 31-32.
[11] Exhibit G1, G Documents, G7 at pages 33-34.
[12] Exhibit G1, G Documents, G8 at pages 35-36. The Tribunal notes that this document discloses no previous convictions.
The Applicant’s Statement of Issues Facts and Contentions[13] were as follows:
[13] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions.
APPLICANT’S STATEMENT OF FACTS ISSUES AND CONTENTIONS
ISSUE
The issue in this application is whether the correct or preferable decision is to set aside the decision of the respondent’s delegate made on 9 November 2020 to refuse the applicant’s application for a Bridging E visa under s 501(1) of the Migration Act 1958 (the Act).
FACTS
The chronology sets out the events which are admitted by the applicant and are relevant to this application.
Date
Event
Reference
Applicant born in Quang Binh, Vietnam
G-Docs at 105
Applicant’s partner, Witness A2, born in Vietnam
G-Docs at 108
24.12.99
Witness A2 first arrives in Australia
G-Docs at 89
26.6.02
Witness A2 granted Australian citizenship
G-Docs at 109
4.5.09
Applicant married to Ms Ho
G-Docs at 99
7.2.13
Applicant first arrives in Australia on a subclass 573 Higher Education Sector visa valid until 30.8.16
G-Docs at 106
24.6.16
Applicant shown on CCTV purchasing vacuum- sealed bags for the purpose of packaging a commercial quantity of cannabis
G28
28.6.16
Police conducting search at Upper Mount Gravatt (Brisbane) find six vacuum-sealed bags containing
1.82 kgs of cannabis. Applicant’s fingerprints detected on bags.
G28
10.8.16
Police conducting search in Inala (Brisbane) in the presence of three individuals (not including the applicant)2 find 39.86 kgs of cannabis in vacuum- sealed bags, together with a vacuum-sealing machine with applicant’s fingerprints on the base.
G28
14.9.16
Police conducting surveillance in Inala and Sunnybank observe applicant with two others driving Toyota to shopping centre, where 44.61 kgs of cannabis in 100 bags delivered by applicant to two other vehicles, for sale to customers.
G29
19.12.16
Applicant arrested and charged with four offences:
Trafficking in a dangerous drug (cannabis)
Possess dangerous drug (cannabis)
Possess vacuum sealing machine and bags used in connection with trafficking in dangerous drug (cannabis)
Supply dangerous drug (cannabis) Applicant granted watch-house bail.
G-Docs at 33-34
Statement of Facts
5.5.17
Applicant divorced
G-Docs at 99
21.5.17
Applicant begins relationship with Ms Vu
G-Docs at 98
2.6.17
Applicant lodged application for Partner visa on basis of relationship with Ms Vu
G-Docs at 38
25.8.17
Applicant ends relationship with Ms Vu Applicant withdraws application for Partner visa
G-Docs at 98
G-Docs at 38
10.9.17
Applicant first meets Witness A2
G-Docs at 95
1.10.17
Applicant engaged to Witness A2
G-Docs at 95
Daughter, Child G [redacted], born in Liverpool to applicant and Witness A2
G-Docs at 111
10.10.19
After pleas of guilty, applicant sentenced in District Court of Queensland (Judge Jarro) on three counts as follows:
Count 1 - Produce dangerous drug (cannabis):
9 months imp., concurrent with sentence on Count 3
Count 2 - Possess vacuum sealing machine used in connection with trafficking in dangerous drug (cannabis):
3 months imp., concurrent with sentence on Count 3
Count 3 - Possess dangerous drug (cannabis) in excess of 500 grms
3 yrs imp., 26 months suspended for 4 years
G-Docs at 27-30
7.8.20
Applicant released from Brisbane Correctional Centre after serving sentence and transferred to Brisbane Immigration Transit Accommodation Centre
G 39
10.9.20
Respondent sends applicant Notice of intention to consider refusal of visa under s 501(1)
G-Docs at 136-
140
23.10.20
Dr Chan, senior clinical psychologist, assesses applicant as being of low risk of reoffending
G 149-162
9.11.20
Respondent makes decision to refuse application for a visa
G-Docs at 13-24
13.11.20
Applicant notified applicant of decision
G-Docs at 10-12
21.11.20
Applicant lodges application for review with Tribunal
G-Docs at pp 3-9
CONTENTIONS
Protection of the Australian community - Direction 79, par 11.1
The nature and seriousness of the applicant’s conduct - Direction 79, par. 11.1.1
The applicant accepts the facts which establish the offences for which he was sentenced on 10 October 2019.
It is also noted:
(a)The applicant was originally charged with the very serious offences of traffick (sic) and supply dangerous drug; however these charges were apparently unsustainable on the facts and he eventually pleaded guilty to the three charges referred to in the sentencing remarks.
(b)The applicant played a peripheral role in the overall criminal enterprise. The main target of the Queensland State Drug Squad operation was a syndicate operating multiple cannabis grow houses in South East Queensland which was supplying a Brisbane-based syndicate; the applicant was not the main target. The Facts section in the relevant part of the Queensland Police Court Brief supports this contention; there is no reference to the applicant being a part of the syndicate, nor was he identified as the “Sydney-based courier” who delivered the 100 lbs of cannabis from Sydney to Brisbane; the applicant’s only role was to have purchased the vacuum sealed bags for a purpose of packaging a commercial quantity of cannabis (Count 1), possessing a vacuum-sealing machine “at least momentarily” for use in connection with packaging a commercial quantity of cannabis into clipseal bags (Count 2)8, and - the most serious offence - transporting cannabis in the boot of the car from an unknown location to another person for an (unknown) commercial reward because the cannabis was to be onsold to another customer or other customers (Count 3).9
(c)There is no evidence that the applicant acted out of greed or made any large amounts of money from his conduct. He did not participate in the financing of the syndicate or provide any of assistance in setting up the transfer of cannabis. He did not share in any of the profits of the syndicate; the sentencing judge’s comment that “perhaps” the applicant’s criminal conduct was done “out of desperation for money” (G 29:19-20) is borne out by all of the available evidence, including the applicant’s statement (G 39) and what he told the psychologist, Dr [redacted] Chan (G 153).
(d)The applicant pleaded guilty, which is indicative of remorse and was regarded by the sentencing judge as being to his credit (G 28:17-21).
(e)As pointed out by the applicant’s former representative (G 58 [4]), the actual sentence imposed on the applicant was very much at the lower end for this type of offence, although it is accepted that any sentence of imprisonment is indicative of serious offending.
In summary, the applicant’s criminal conduct may be characterised as a low level example of a serious offence. This is reflected in the actual sentence of three years imposed on the applicant where the maximum penalty was twenty years (G 28:13-15), and the comparatively low non-parole period of ten months. In imposing this comparatively low sentence his Honour gave weight[14] to the applicant’s prior clean record, his peripheral role in the criminal enterprise, and the mitigating circumstances which led to his involvement in the criminal conduct.
[14] Exhibit G1, G Documents, G5 at pages 27-30.
Risk to the Australian community - Direction 79, par. 11.1.2
The only recent assessment of the applicant’s prospects of re-offending has been by Dr Chan in his Report dated 23 October 2020 (G 149-162). Dr Chan, over a period of three days (14, 16 and 21 October 2020), conducted clinical interviews and psychometric assessments of the applicant and concluded that the applicant’s risk of recidivism is now “low” (G 160). This is consistent with the finding of the delegate, who at [32] (G-Docs at 21) accepted that the applicant’s risk of re-offending is “low”.
The Tribunal ought to accept the expert evidence that the applicant is at low risk of reoffending
This is not the sort of case where the conduct of the applicant has been so serious that any prospect of re-offending would represent an unacceptable risk to the Australian community. The applicant was a small cog in an obviously much larger criminal syndicate; his role was not such that there is an unacceptable risk of harm to the Australian community if he is to remain in Australia.
On the first primary consideration, being the protection of the Australian community, the serious nature of the offending will weigh against the applicant; however, this is ameliorated by his low risk of re-offending. It is contended that, overall, this factor will weigh against the applicant, although not very heavily and certainly not decisively.
Best interests of minor children in Australia affected by the decision - Direction 79, par. 11.2
The applicant has a very young daughter, [Child G]. If the applicant is required to leave Australia, his partner is most unlikely to relocate with him, and [Child G] will lose all real contact with her father. While there might not have been much in the way of physical contact between the applicant and [Child G] since his incarceration, that does not negate the likelihood that [Child G] would not be severely affected by the absence of his (sic) father for the rest of his (sic) childhood.
It is trite to observe in removal cases that children will suffer if physically separated from a parent. In their 2014 paper referred to by Dr Chan (G 160), Brabeck, Lykes and Hunter say the following, at 500 (references removed):
The detrimental effects of forced and unexpected parent-child separation, even when children are well cared for in a safe environment, have long been documented in the psychological and psychiatric literature…Unlike separations involved in voluntary migration decisions, which may include economic benefits but social- emotional costs, forced separations owing to deportation incurred the social emotional cost without the economic benefit (in fact, economic situations typically deteriorate further following deportation…Deportations involve a double or triple trauma for children, who may witness the forcible removal of the parent, as they suddenly lose their caregiver and/or abruptly lose their familiar home environment…From the attachment theory perspective…, a child's sense of security is rooted in relationships with familiar caregivers; this secure base is a necessary foundation for developing social, cognitive, and emotional regulation skills that are fundamental throughout life. The physical separation between a parent and child, particularly when unexpected as in the case of deportation, disrupts this essential secure base, risking internalizing symptoms (depression, anxiety), externalizing behaviours (withdrawal, aggression), and social and cognitive difficulties…All learning— whether learning the alphabet, learning to wait one's turn, or learning to tolerate frustration—happens in the context of important relationships, of which the primary caretaker-child relationship is paramount. When these relationships are disrupted, the learning processes and the establishment of the important neuronal pathways also are disrupted.
There is no realistic way that Child G would be able to maintain contact with her father “in other ways”: cf, Direction 79 at 9.2(4)(d). There is unlikely to be the resources for the applicant’s partner to make visits to Vietnam in anything like the frequency that would be required for [Child G] to maintain an adequate relationship with her father, and alternative communication by such electronic means as telephone or video chat is increasingly being realised by this Tribunal as something that “does not offer a practical solution that would be in the best interests of the children and their development”: HMDS and Minister for Immigration [2020] AATA 1634 at [84] (SM Puplick).
The best interests of [Child G] ought to be recognised as an issue of the highest order in this case.
Expectations of the Australian community - Direction 79, par. 11.3
The applicant accepts that the expectations of the Australian community will generally weigh against an applicant. However it is contended that where there is a low prospect of re-offending and where there is an Australian citizen partner and child who will be deprived of the applicant’s presence in the event of removal, this factor should not weigh heavily against the applicant.
International non-refoulement obligations - Direction 79, par. 12.1
This is not a relevant factor in the present case.
Impact on family members - Direction 79, par. 12.2
The effect of the removal of the applicant on his daughter has been referred to, above.
Dr Chan at G 160 described the impact of a visa refusal on the applicant’s partner as being “very significant”:
It is anticipated that Ms. [redacted] mental health would deteriorate which would further interfere her ability to care for her daughter and financially support herself. Given a history of depression and current depression episode, her suicidal risk would increase.
This factor ought to weigh heavily in favour of the applicant.
Impact on victims - Direction 79, par. 12.3
This is not a relevant factor in the present case, since no victims have been identified.
Impact on Australian business interests - Direction 79, par. 12.4
This is not a relevant factor in the present case.
CONCLUSION
The decision under review ought to be set aside and substituted with a decision that applicant’s visa ought not be refused under s 501 of the Act.
[Some citations omitted]
The Respondent’s Statement of Facts Issues and Contentions[15] was as follows:
[15] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions.
RESPONDENT’S STATEMENT OF FACTS, ISSUES AND CONTENTIONS DECISION UNDER REVIEW
By an application made on 21 November 2020, the applicant seeks review of a decision of a delegate of the respondent (Minister) dated 9 September 2020 to refuse to grant the applicant a Bridging visa (Class WE) under to s 501(1) of the Migration Act 1958 (Cth) (Act).
The application for review is made in accordance with s 500(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (Tribunal) for review of decisions of a delegate of the Minister under s 501(1) of the Act.
The issues before the Tribunal are whether the applicant meets the character test as defined in s 501(6) of the Act, and if he does not, whether the discretion in s 501(1) of the Act should be exercised to refuse to grant the applicant a visa.
The Minister contends that the applicant does not meet the character test, and that the correct and preferable decision is to exercise the discretion in s 501(1) of the Act to refuse to grant the applicant the visa.
BACKGROUND
The applicant is a 35 year old citizen of Vietnam who made an application for a combined Partner (Temporary) and Partner (Residence) visa on 18 August 2020. In connection with the combined application, the applicant lodged an application for a Bridging visa (Class WE) (the visa). He first arrived in Australian in 2013 as the holder of a student visa.
On 10 October 2019, the applicant was sentenced in the Brisbane District Court in relation to the following offences:
Possessing dangerous drugs schedule 2 quantity of or exceeding schedule 3 – sentenced to three years imprisonment suspended for four years after serving 10 months.
Produce schedule 2 drug – other cases – sentenced to nine months imprisonment (to be served concurrently).
Possessing anything for use in the commission of crime defined in part 2 – sentenced to three months imprisonment (to be served concurrently).
On 10 September 2020, the applicant was sent a notice of intention to consider refusal of the grant of the visa under s 501(1) of the Act (G22). The applicant responded to the notice by providing submissions and evidence.
On 9 November 2020, a delegate refused to grant the visa under s 501(1) of the Act (G3). The applicant was not notified of this decision on 13 November 2020.
On 21 November 2020, the applicant sought review of this decision in the Tribunal (G2).
ISSUES
The issues for the Tribunal are:
Whether the applicant passes the character test (as defined in s 501(6)); and
If he does not, whether the Tribunal should exercise the discretion in s 501(1) to refuse to grant the visa.
LAW
Under s 501(1) of the Act, the Minister (or a delegate) may refuse to grant a visa if that person does not pass the character test prescribed in s 501(6) of the Act. In its terms, s 501(1) of the Act confers a discretion. Even if the applicant does not pass the character test, the Tribunal has a discretion as to whether or not to refuse to grant him a visa.
In deciding whether the applicant passes the character test, and if not then in deciding how to exercise its discretion, the Tribunal must have regard to Ministerial Direction No 79 (Direction 79), being a direction made by the respondent under s 499 of the Act.
Direction 79 is separated into three parts: Part A, B, and C. Part B identifies the considerations relevant to visa applicants in determining whether to exercise the discretion to refuse a non-citizen’s visa, and is the section that is applicable to this matter.
Informed by the Principles at paragraph 6.3 of Direction 79, the decision-maker must take into account the primary considerations, set out in section 11 in Part B of Direction 79, in deciding whether to refuse a non-citizen’s visa:
Protection of the Australian community from criminal and other serious conduct;
The best interests of minor children in Australia; and
Expectations of the Australian community.
In section 12 of Part B, there are other considerations related to visa applicants which must be taken into account, where relevant. These considerations are:
International non-refoulement obligations;
Impact on family members;
Impact on victims; and
Impact on Australian business interests.
CONTENTIONS
The character test
Failure of the character test arises as a matter of law.[16] As noted above, the applicant was sentenced to a term of imprisonment for three years for the drug possession offence. The Minister therefore contends that the applicant has a substantial criminal record (as defined by s 501(7)) and does not pass the character test: s 501(6)(a) of the Act.
[16] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47 at
The Minister contends that the determinative issue for this Tribunal is whether the grant of the visa should be refused. Below, this issue is addressed by reference to the factors set out in Part B of Direction 79.
The Protection of the Australian Community
Pursuant to paragraph 11.1 of Direction 79, this factor involves consideration of (a) the nature and seriousness of the applicant’s conduct to date, and (b) the risk to the Australian community should he commit further offences or engage in other serious conduct.
Nature and seriousness of conduct
Paragraph 11.1.1 of Direction 79 sets out the factors to which decision-makers must have regard when considering the nature and seriousness of the applicant’s criminal offending or other serious conduct.
Fort (sic) the following reasons, the Minister contends that the applicant’s offending should be viewed as serious.
On 10 October 2019, the applicant was sentenced in the Brisbane District Court in relation to the three drug offences referred to above and the sentencing remarks are before the Tribunal. The sentencing judge described the offences as ‘very serious offences’ and that the offending, particularly in relation to count three, involved ‘not an insignificant amount of drugs’ (G5/28). In relation to the first count, producing a dangerous drug, police conducted a search on 28 June 2016 and located 1.82 kg of cannabis packaged in six vacuum-sealed bags. The applicant was sentenced on the basis that he purchased the vacuum-sealed bags for a purpose of packaging a commercial quantity of cannabis. In relation to the second count, possessing a thing for use in connection with producing a dangerous drug, the applicant was sentenced on the basis that he possessed a vacuum-sealing machine at least momentarily for use in connection with packaging a commercial quantity of cannabis into clip-seal bags. The most serious offence was the third count and involved the applicant transporting 44.61 kg of cannabis from an unknown location with the purpose of allowing another driver to take possession of it. The applicant was to receive an unknown commercial reward for transporting the drugs and the intended destination for the cannabis was to be sold onto other customers.
Regard must also be had to the sentence imposed by the Court for his crimes (paragraph 11.1.1(1)(f) of Direction 79). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Accordingly, where a Court has sentenced an offender to a term of custodial imprisonment, this must be viewed as a reflection of the object seriousness of the offences involved. Here, the applicant was sentenced to a lengthy three year sentence for his most serious drug offence.
Risk to the Australian community
In assessing whether the applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 11.1.2 of Direction 79, which provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Decision-makers must have regard to, cumulatively, (a) the nature of the harm to individuals or the Australian community should the non-citizen engage infurther (sic) 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 applicant re-offending.
The nature of the harm should the applicant reoffend in the future is serious, as the consequential effect of the production and possession of large quantities of illicit drugs may result in physical and psychological harm to individual users to whom the drugs are ultimately supplied, crimes committed by users and increased costs to the community in terms of law enforcement, the justice system and the public health system.
Illicit drugs have a significant and deleterious impact on the Australian community. In its National Drug Strategy for 2017-2026, the Commonwealth Government said the following about cannabis use in Australia (citations omitted):
In 2016, 10.4% of Australians over the age of 14 had used cannabis in the last 12 months and 34.8% had used cannabis in their lifetime. As the most widely used of the illicit drugs in Australia, cannabis carries a significant burden of disease. The use of cannabis can result in various health impacts, including mental illness, respiratory illness, and cognitive defects. In particular, cannabis dependence among young adults is correlated with, and probably contributes to, mental disorders such as psychosis.
The Australian Institute of Health and Welfare identified that some of the long- term effects of cannabis use include physical dependence, upper respiratory tract cancers, chronic bronchitis, cardiovascular system damage, mental health conditions including depression and poor adolescent psychosocial development. Cannabis was also the second most common drug identified at toxicology for transport accident deaths.
Appellate Courts have also identified that the correlation between the use of cannabis and mental illness and progression to harder drugs is a familiar theme in sentencing materials in more recent times.[17]
[17] Lester v The State of Western Australia [2011] WASCA 128 [21]-[22]; cited in Western Australia v Yeates [2018] WASCA 232 at [40]-[42].
In relation to the risk of reoffending, the applicant has explained that his offending arose in the context of financial desperation (G9/39). The Minister contends that the applicant remains an unacceptable risk of reoffending for these reasons:
The applicant’s offending appears to have been motivated by financial distress and there is no evidence before the Tribunal to indicate the applicant has sought any assistance for, nor overcome, these difficulties, which will act as stressors on release and contribute to his risk of reoffending.
Some of the protective factors identified by Dr Chan in the report dated 23 October 2020 – including a stable relationship stable accommodation were in existence whilst the applicant was offending.
Given that the applicant has been in custody or immigration detention since October 2019, the Minister contends that sufficient time has not elapsed where the applicant has not been in an unsupervised environment within the community and the likelihood of his reoffending remains a real possibility.
Given the serious nature of the offending and the possible harm if it were to be repeated, the Minister contends that even a low risk of reoffending is unacceptable. In this regard, the Minister emphasises the general principles of Direction 79 which provide that Australia has a low tolerance of criminal offending by those on limited stay visas, such as the applicant who was the holder of a student visa at the time of his offending (paragraph 6.3(6) of Direction 79).
The Minister contends that the protection of the Australian community weighs heavily against renovation (sic).
Best interests of minor children
Paragraph 11.2 of Direction 79 sets out a number of factors to be considered in assessing the best interests of minor children. These include: the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child; the likely effect that any separation from the person would have on the child; whether there are any other people who fulfil parental roles with the child; any known wishes of the child; and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions.
The applicant has one minor biological daughter, [Child G] (DOB: [redacted] September 2018, aged two) with his partner, Ms [Witness A2].
The Minister contends that lesser weight should be given to the applicant’s daughter’s best interests because she is cared for by her mother who fulfils the parental role (paragraph 11.2(4)(e) of Direction 79) and there is no reason why the applicant could not continue to communicate with his daughter electronically if he were returned to Vietnam (paragraph 11.2(4)(d) of Direction 79) .
Expectations of the Australian community
This primary consideration weighs in favour of refusal. Regard must be had to the principle that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa.
The Full Court of the Federal Court of Australia considered paragraph 11.3(1) of Direction 65, which provision is analogous to paragraph 11.3(1) of Direction 79, in FYBR.[18] In FYBR, the majority (Charlesworth and Stewart JJ) concluded that:
[18] FYBR v Minister for Home Affairs [2019] FCAFC 185
Paragraph 11.3 contains a statement of the government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.4 It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations.5
The content of the expectations of the Australian community as expressed in paragraph 11.3 is as follows:
“If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”[19]
[19] YNQY and Minister for Immigration and Border Protection [2017] FCA 1466 at [76] and [77]; also FYBR at [75] (Charlesworth J); Ibid at [66] (Charlesworth J), [91] (Stewart J).
The effect of paragraph 11.3(1) points to the likelihood that community expectation will in most cases call for refusal, without dictating an inflexible conclusion.[20] The question for a decision-maker is the weight to be attached to this consideration.[21]
[20] Ibid at [67] (Charlesworth J), [104] (Stewart J).
[21] Ibid at [101], see to a similar effect [75] (Charlesworth J).
In accordance with paragraph 11.3(1) and principles 6.3(1)-(3) and (6) of Direction 79, the Australian community would expect that the applicant should not be allowed to remain in Australia. Accordingly, the Minister contends that the primary consideration of the expectations of the Australian community weighs in favour of refusal.
Other considerations
Impact on family members
Paragraph 12.2(1) requires the Tribunal to consider the impact of visa refusal on immediate family members in Australia where those family members are Australian citizens, Australian permanent residents or persons with a right to remain indefinitely.
The Minister acknowledges that the applicant’s Australian citizen partner may suffer some hardship in the event that the visa were refused. The applicant’s removal to Vietnam would involve a physical separation from his partner, but there is no evidence before the Tribunal to suggest that she would not be permitted to visit him in Vietnam, or relocate there with him if she so decides.
The Minister accepts that this consideration weighs in favour of the applicant, but should only be given limited weight and is not outweighed by any of the primary considerations weighing against refusal.
International non-refoulement obligations, Impact on victims and Impact on Australian business interests
There is no evidence bearing upon these considerations in this case. Nor does the applicant contend that these considerations are relevant.
CONCLUSION
For the reasons outlined above, the factors identified by the applicant do not singularly or cumulatively support the favourable exercise of the discretion in s 501(1) of the Act. The Minister contends that the primary considerations of the protection and expectations of the Australian community weigh heavily in favour of refusal and are not outweighed by any factors in the applicant’s favour.
Accordingly, the Minister contends that the delegate’s decision is the correct and preferable one and ought to be affirmed.
[Some citations omitted]
Evidence before the Tribunal
In considering this application, the Tribunal has had regard for the all of the documentary exhibits listed in the Exhibit register which is annexure A to these reasons.
Witness Evidence
Applicant’s evidence
In his statement responding to the notice of intention to consider refusal of his visa[22] the Applicant recounted that he had come to Australia as an international student, changed courses, and had applied for a further visa on 13 September 2016, but this was refused. He appealed this decision to the AAT, but did not attend the hearing.
[22] Exhibit G1, G Documents, G9 at page 38.
On 2 June 2017, he applied for a partner visa on the basis of a marital relationship, but withdrew it because he had to provide compelling reasons for the visa to be granted as he was an unlawful non-citizen at the time of lodgement.[23] He and his partner subsequently separated after this happened.
[23] Exhibit G1, G Documents, G14 at page 68.
The Applicant stated that he met his current partner in late 2017, and that they have a daughter born in September 2018.[24]
[24] Exhibit G1, G Documents, G19 at page 111.
The Applicant stated that in September 2016, he committed “an offence related to drugs in Australia” to which he pleaded guilty and served imprisonment for 10 months, and was released with a suspended sentence for four years.
The Applicant stated that in 2016 he changed his school to Melbourne. The Applicant stated:
I was desperate for money because I had to pay the school fees. My parents did not have the financial capacity to pay for my study. I also met my ex wife, [redacted] Vu at that time, although we were in a loving relationship at the time I committed the offences, I felt that I need money for her, and she said that she would sponsor me on a partner program so I was desperate for money to pay for the immigration fees.
I now regret my action. I criminal act is a stupidity. I learned my lesson when I was arrested.…
Since I was arrested in September 2016, I have not committed any other offence in Australia. I understand that as a citizen in Australia I have to be a good person.
I promise that I will not commit any other offence in Australia. I will respect the Australian law and its people.…
My partner and I first met each other in September 2017…
In early 2018, my partner found out that she was pregnant. My partner and I were really excited to have a child. Our daughter was born on [redacted] September 2018. Her name is [Child G]. I live with my partner and took care of my daughter together with my partner.
Because of my conviction, I had to serve my sentence in October 2019 and cannot continue to live with them. However during my time in prison, I called my partner every day to talk to her and to check up on our daughter if she is doing fine. I worked and earned money in prison. I sent the money to my partner in support her and our daughter.
We plan that if I am granted a bridging visa I will live with her… Because the bridging visa E will have a work restriction condition, so I will stay at home looking after my daughter while my partner will find a full-time job so we will not rely on the Centrelink support.
We plan to build a happy and loving family environment for our daughter. Like any mother and father in this world, we want to give our daughter the care, the love and raise our daughter to become a healthy and good person.…
My partner is currently living in New South Wales while I am detained in Brisbane. She could not visit me because it is far away from her home, and especially in this Covid 19 time which makes the visiting extremely difficult.
If my visa is refused it would be difficult for us in terms of finance. My partner is not working at the moment and relying on the Centrelink support. Visiting me would cost a lot of money for the airfare and the transports.
Also the visit will be in a short time, we cannot stay long hours with each other, and we cannot have meaningful care and have a husband’s and partners life. Also, I cannot spend a quality and meaningful time with my daughter and provide her the responsibility of a father.
Another difficulty for my partner is that taking my daughter in detention will have an adverse impact on our daughter which my partner has to consider. I believe that a detention place is not a right place for children to be exposed. It will cause trauma for my daughter. My partner and I do not want to do so. If I am deported, it will be difficult for my partner to take my daughter to Vietnam to live with me since her life has been rooted in Australia, and the costs are very expensive which my partner cannot afford while she is a stayed home mother.…
Currently, I am detained in Brisbane detention. I am allowed to use my mobile phone. I called my partner every day by video call to see my partner and my daughter. My daughter is very happy when she sees me talking to her on the phone. She wanted to hug and kiss me that she cannot because I was not with her, it was a video call.
My daughter knows that I am her father. We developed a strong father daughter bond before I served my sentence, during the time I serve my sentence and at the present. If my visa is refused, my daughter would suffer the emotional hardship of not having direct contact with her father.
My daughter would suffer the disadvantage of not having the direct care, affection and the love from a father. If my visa is refused, we can contact by phone call or video call, however these contact methods cannot be substituted by the direct contact, which my daughter would feel the love, the affection and the care from her father.
My daughter would emotionally suffer as she would be without the care of her father figure and would not receive the same rights as other Australian citizen children. If my visa is refused, my daughter would not be able to grow up in a family environment with happiness, love and the understanding of both mother and father. My partner and I have built a nurturing family environment for my daughter. We have been living together since [Child G] was born and before I served my sentence.
My daughter is in the development age, it is in her best interest that she has a father to guide and to discipline her for her best development in terms of social behaviour. With the absence of a father this is a huge disadvantage for my daughter.
In a statement for a Partner Visa and Bridging Visa E the Applicant reiterated much of what he had stated in his prior statement.[25] He emphasised the importance of not committing any criminal offence and living at a specified address should a visa be granted. He also stated:
About not going to work, my partner will take care of all my expenses including accommodation and food. My partner’s mother also provided a statement confirming that she will pay for all my living expenses.[26]
[25] Exhibit G1, G Documents, G10 at page 43.
[26] Ibid at page 44.
The statement of the partner’s mother referred to by the Applicant is not in evidence before the Tribunal. The Applicant’s partner, Witness A2 made no similar assertion of financial support from her mother in the statutory declaration she placed before the Tribunal. The Tribunal therefore gives this aspect of the Applicant’s statement little weight.
In his Personal Circumstances Form[27] the Applicant left blank item 10 which related to Criminal History and Risk of Reoffending. He left blank the section which asked if he had completed any courses or programs that would help him to avoid further offending or other serious conduct. The Applicant also left blank item 12 which related to Impediments to his return to his home country. At item 13, he ticked the “No” box which asked if he had any concerns or fears about what would happen to him if he would return to his country of citizenship. He again ticked the “No” box when asked if he faced any criminal charges/convictions in his country of citizenship. The section which asked if there were any other problems he would face if he had to return to his country of citizenship was also left blank.
[27] Exhibit G1, G Documents, G11 at page 45.
Witness A2’s statutory declaration
The Applicant’s partner Witness A2 provided a statutory declaration[28] dated 18 January 2021, in which she stated that she is in a de facto relationship with the Applicant, and that they have the daughter referred to by the Applicant. Extracts of her statutory declaration included:
[28] Exhibit A2, Statement of Witness A2.
6. In 2018, I found out that I was pregnant. My partner and I was (sic) really excited to have a child.
7. However, my family did not accept my partner because they knew that he has criminal offence and was having his matter at the court at that time. It was difficult for us to convince the family.
8. Although we started our de facto relationship, we could not live together because my family did not accept him.
9. My partner has shown to my family that he is a good father and is a caring partner.
10. My mother and family members finally accept him and now wish that we can live together to take care of our daughter.
…
12. My partner and I support each other emotionally. Serving his sentence in prison was a difficult time for our family. We could not see each other and had to live apart from each other.
13. I planned to visit my partner and bring our daughter to see him, but the coronavirus prevented us from doing so.
14. My partner called me twice every day from prison to speak with me and to listen to our daughter’s voice. When he was released from prison to the immigration detention centre, we called each other every day by video call.
15. When I knew my husband for the first time, I was aware of his offence. He told me about his offence which involved in supplying cannabis. However, he told me that he really regrets what he has done. To me, my partner has a good character even though he has committed criminal offences. He always tries to change himself to a better person and to be a good father.
16. When he was in prison, he sent me the money he earned from working in prison. Although the amount was small, he wanted to contribute whatever he had at that time to take care of our daughter. I know that my partner is a good partner and a good father.
17. Regarding my partner’s criminal offence, I am confident that he will not re-offence (sic). He always shows his remorse to me. We now have a family, a lovely daughter. I am sure that he will not jeopardise his future by committing any other offences. If my partner can stay in Australia, he will work as a baker and will take care of me and our daughter.
18. It is difficult for me to raise our daughter by myself. Our daughter is only two year old (sic). She needs the love and care of both mother and father for her emotional and physical development. My partner is currently detained in Brisbane, it is also very difficult for me and my daughter to visit him. If my partner is removed to Vietnam, it would be much more difficult for us to visit each other. I always want my partner to live with me and my daughter. It is impossible for me to live in Vietnam with my partner because my life has rooted in Australia. Also, the living condition and education system in Australia is better for my daughter compared to Vietnam. As parents, my partner and I always want our children to have a better living environment and better education. Therefore my daughter and I will continue to live in Australia and cannot move to live in Vietnam.
Dr Chan’s report
The Tribunal has had regard for the Confidential Psychological Report[29] dated 23 October 2020 and prepared by Dr Chan after the Applicant was sentenced. Dr Chan describes himself as a senior clinical psychologist. For the purposes of preparing the report, Dr Chan had contact with the Applicant with the assistance of an interpreter totalling approximately six hours, consisting of four hours of structured clinical interview and two hours of psychometric testing. Dr Chan did not consult with the Applicant’s partner for the purposes of his report, and neither did he have any statement from her, or medical reports pertaining to her before him. His sole source of information pertaining to her appears to be the Applicant.
[29] Exhibit G1, G Documents, G26 at pages 149 – 162.
Dr Chan reported that the Applicant’s original family continue to live in Vietnam, and that he has a good relationship with them.[30] The Applicant’s social network is established in Vietnam and he has few friends in Australia. He has distanced himself from those involved with substance abuse and criminal activity in Australia. The Applicant described his childhood as good, and he came from a middle-class family. He came to Australia to continue his study in about 2014. The Applicant reported no history of child abuse, trauma or conduct problems, and was close to both his parents. He reported good relationships with classmates and teachers in both primary and high school, and had no learning difficulties or behavioural problems. His academic performance was average – above average. None of his school friends were involved in any crimes or substance abuse. The Applicant commenced university in Vietnam but chose to terminate his enrolment in civil engineering midway through his second year. In Australia he first studied English and a diploma of hotel management in Queensland. However, he felt he was not capable of completing the diploma, so decided to study in a course of cooking in Melbourne but had never commenced. He had worked as a part-time baker assistant and assisted in roller door and air conditioning installation but ceased employment after being arrested.[31] He reported good relationships with his co-workers and employers, and his job performance was good. He had never been terminated from a job, and had no problems with his employers and colleagues. He plans to study bakery/pastry chef and become a qualified baker profession if he is permitted to remain in Australia. The Applicant told Dr Chan he has never used any illicit drugs. Regarding his criminal offending, Dr Chan reported:
in summary, Mr [GNRK] was studying and working part-time in Brisbane. He found that the course was not suitable to him, thus he planned to change to a cooking course in Melbourne. He stated that the reason he decided to move to Melbourne was because he had friends there and was interested in the course. He met Ms [redacted] Vu in Sydney in 2016. He stated that they decided to marry. As he was also in a process of changing educational institution and applying for a visa to stay in Australia, he needed additional funds for paying tuition and visa application fees. Moreover, Mr [GNRK] reported that he felt obliged to financially support his then girlfriend and younger sister’s study in Vietnam, although neither asked him for financial support. Mr [GNRK] explained that in Vietnamese culture, when a man decides to marry a woman, it would be his duty to provide for the woman and it would also be appropriate for a man to financially support his family as much as possible. He further explained that at the time, no one was able to help him and he had no other sources of obtaining finance. He was stressed and worried. He was in need of money to pay for the visa application fee, tuition fee, supporting his ex-girlfriend, his sister, and his own living expenses. He wanted to acquire finance quickly to resolve his financial difficulty.
Upon his friend’s recommendation, he approached people who offered him the job. This eventually led to his involvement in the offences.[32]
[30] Exhibit G1, G Documents, G26 at page 151.
[31] ibid at page 152.
[32] ibid at page 153.
Under the heading Psychological Profile, present psychological state, Dr Chan reported as follows:
Mr [GNRK] reported symptoms of depression, including depressive mood, loss of interest, loss of appetite, fatigue, sense of worthlessness, poor concentration and death wish (sic). He reported that he has experienced an exacerbation of these symptoms in the last 10 days as the decision on his visa application is approaching. He reported no current suicidal thoughts, plans or previous attempts.
Mr [GNRK] has not met the diagnostic criteria for Major Depression at present, as the duration of his symptoms shorter than 2 weeks. However if his symptoms persist longer, it is likely that he would be diagnosed with Major Depression.
He reported that he has experienced symptoms of anxiety for the last two months.. He explained that his anxiety is largely related to his current living condition (in the immigration centre) and waiting for the result of his visa application. However his anxiety symptoms are unspecific and do not match any symptom profiles of clinically identifiable anxiety disorders. His main stressors are his separation from his wife and daughter, current accommodation, and visa application.
Mr [GNRK] reported no symptoms of any other psychiatric conditions, such as Conduct Disorder, Antisocial Personality, Borderline Personality, Gambling, Intermittent Explosive Disorder or ADHD.
Psychiatric history
Mr [GNRK] reported no psychiatric history or trauma history. He reported that he has never seen any mental health professionals.
Dr Chan assessed the Applicant for Malingering and Deception. His profile was considered healthy and his responses likely to be honest and valid. Dr Chan also assessed the Applicant’s personality, and found there was no indication that the Applicant was attempting to distort test results. The Applicant was a moderate risk of experiencing emotional and behavioural problems of clinical significance. Dr Chan also assessed the Applicant for psycho pathology, and the results indicated the presence of symptoms of depression anxiety and stress at a severe level.
The Applicant’s prospects of recidivism were assessed using the Level of Service Inventory (LSI-R) as low. Likewise, his prospects of recidivism were assessed using the Self-Assessment Questionnaire (SAQ) as also being low.
Dr Chan then proceeded to set out the Applicant’s comparison of the differences between the quality of life for his wife and daughter living in Australia and living in Vietnam. He shared his concerns that his wife would struggle to find work, obtain mental healthcare, and the impact on their daughter of the significant differences between Vietnam and Australia.
Dr Chan concluded that the Applicant suffered from depression, unspecific anxiety and stress, his major stressors being his separation from his wife and daughter, current accommodation, and visa application. He suffered no other psychiatric conditions.
Dr Chan opined that the prospect of recidivism was low, and that the Applicant had very few risk factors.[33]
[33] Ibid at page 159.
Notwithstanding that he had neither seen nor interviewed the Applicant’s wife and daughter, nor viewed any medical reports pertaining to either, Dr Chan accepted the Applicant’s reports, and stated:
His wife has suffered depression. She continues to struggle to raise her daughter and support herself financially in the absence of her husband. This in turn exacerbated her mental health problems.
If Mr [GNRK]’s visa to enter Australia is denied, the impact on both his wife and daughter would be very significant. It is anticipated that Ms [Witness A2]’s mental health would deteriorate which would further interfere (sic) her ability to care for her daughter and financially support herself. Given a history of depression and current depression episode, her suicidal risk would increase. These would increase the health care cost to the Australian community.
The impact of Mr [GNRK]’s visa rejection on Miss [Child G] would be very significant. The literature indicates that father’s involvement in children’s development is very important. Father absence may affect girls’ development more than boys’, affecting their academic, emotional, social and psychological development as well as reducing their risks in negative adolescence and adult problems. (Citations omitted) father absence in girls’ life would lower their self-esteem, [34] academic achievement, impair their emotional development, relationship formation; cause mental health problems; increase risking behaviours; and is related to teenage pregnancy, promiscuity, poverty, and rate of violence. (Citations omitted) it is undoubtedly that with father absence during their childhood, Miss [Child G] will become vulnerable to developing serious emotional, social, psychological and sexual problems in the future.
Difficulty in resettlement for Mr [GNRK]’s wife and daughter in Vietnam
It is anticipated that Mr [GNRK]’s visa rejection would pose a very difficult decision to [Witness A2]: whether she would move to Vietnam with her daughter to reunite with Mr [GNRK], or leave her daughter in the care of her relatives in Australia and return to Vietnam herself, or they remain in Australia and continue to be separated from him. (Citations omitted) … The impact of ongoing separation is aforementioned. However, moving Miss [Child G] to Vietnam would definitely compromise her future and quality of life. Miss [Child G] was born in Australia, a democratic country with an equitable and well established political, social, economic, education and health care systems. Her future in this country is undoubtedly bright. If she is sent to Vietnam, the opportunities she would enjoy in Australia would be eliminated. It is not in her best interests to be moved to a country in which she will have a lower quality of life and fewer future opportunities (citations omitted). Moreover, the choice of leaving Miss [Child G] in the care of her relatives in Australia would risk major disruption in her attachment with her mother leading to future developmental and mental health problems. None of the choices would serve Miss [Child G]’s best interests.
Returning to Vietnam would be difficult for [Witness A2]. She mostly grew up in Australis (sic) and has no social network or immediate family members in Vietnam. She has achieved many developmental stages in Australia, such as developing intellectual physical and interpersonal competence, autonomy and interdependence, mature interpersonal relationships, self-identity and a sense of purpose (citations omitted). She has achieved many of these in a country of the democratic system which is very much contrary to her country of origin. Her knowledge, skills and social network from Australia may not be applicable to living in Vietnam. If she returns to Vietnam she would lose social connections with her family and friends. She could suffer economic and employment difficulties. Similar to her daughter, she would miss the benefits of Australia’s equitable and well-established political, social, economic, education and health care systems (Citations omitted). Thus it is not unreasonable to anticipate that [Witness A2] would have major difficulties re-settling in Vietnam.
Based on the psychometric test results, current findings and literature, it is concluded that Mr [GNRK]’s risk of recidivism is low; that the impact of visa rejection on his wife is very significant and detrimental to his daughter; and that his wife and daughter will experience significant difficulties in re-settling in Vietnam. It is of the author’s opinion that to serve Miss [Child G]’s best interest’s, Mr [GNRK] should be allowed to live with and support [Witness A2] and Miss [Child G].
[34] Ibid at page 160.
Evidence at Hearing
In regard to paragraph 11.2(4)(b), it will be some sixteen years before the child turns 18. Whether the Applicant is to play a positive role in her future would be very much dependent on his capacity to abstain from criminal activity, and whilst his prospects of re-offending has been assessed as low, it nevertheless remains to be seen. If the Applicant did not abstain from criminal activity, the consequences for the child might or might not be significant. There are no present court orders relating to parental access and child care. The Tribunal gives this consideration some limited weight in favour of the Applicant.
In regard to paragraph 11.2(4)(c), the Tribunal considers that provided the Applicant abstains from further offending, which is a matter of some uncertainty, his prior and future conduct would be unlikely to have a negative impact on the child. The Tribunal gives this consideration some limited weight in favour of the Applicant.
In regard to paragraph 11.2(4)(d), the Tribunal accepts that should the Applicant’s visa be refused this would be likely result in his separation from the child, and this in turn would have an adverse impact on the child, particularly in consequence of absence of physical contact, for which technology presently provides no suitable substitute. The Tribunal gives this consideration weight in favour of the Applicant.
In regard to paragraph 11.2(4)(e), the Tribunal notes that the Applicant’s partner already fills a parental role in relation to the child. The Tribunal gives this consideration neutral weight.
In regard to paragraph 11.2(4)(f), the child’s age renders it impossible to ascertain her views. The Tribunal gives this consideration neutral weight.
In regard to paragraph 11.2(4)(g), there is no relevant evidence, and the Tribunal gives this consideration neutral weight,
In regard to paragraph 11.2(4)(h), there is no relevant evidence and the Tribunal gives this consideration neutral weight,
An overall consideration of Primary Consideration B weighs in favour of the granting of the visa application.
Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 11.3(1)[73] of the Direction provides in no uncertain terms that the Australian community expects non-citizens to obey Australian laws while in Australia. It also provides that where the Applicant has breached, or where there is an unacceptable risk that he will breach, this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. The Tribunal must also have due regard to the Government’s views in this respect.
[73] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
The Evolution of the Australian Community’s “Expectations”
In 2003, this Tribunal said that in considering weight attributable to this Primary Consideration C, one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[74]
[74] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] (per DP Block).
In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) (a provision similar to paragraph 11.3 but related to visa cancellation) of the Direction leads a decision-maker to:[75]
102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa… [Tribunal’s underlining]
[75] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
This more circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection (“YNQY”):[76]
In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes. [Tribunal’s underlining]
[76] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer also thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] we do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do… [Tribunal’s underlining]
In Afu v Minister for Home Affairs (“Afu”),[77] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did. [Tribunal’s underlining]
[77] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs (“FYBR”),[78] Justice Perry observed that:
It follows, in line with the authorities, that cl 11.3 of Direction 65[79] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...[80] [Tribunal’s underlining]
[78] [2019] FCA 500.
[79] Note: “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[80] FYBR, at [42] (Perry J).
The single judge decision in FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld the single judge decision in FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian community.[81]
[81] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)the “expectations of the Australian community” cannot be measured or determined as a provable fact. Rather, it is an assessment of community values made on behalf of that community;[82]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[83]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks the “expectations of the Australian community” are, and the Tribunal should have due regard of those statements, if made; and[84]
(d)in assessing the weight attributable to this Primary Consideration C, decision‑makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision-maker.[85]
[82] Afu at [85].
[83] FYBR at [42].
[84] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[85] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
In weighing this consideration, there is no escaping the clear unequivocal language of the very simple proposition found in paragraph 11.3(1) of the Direction. It is in these words. “The Australian community expects non-citizens to obey Australian laws while in Australia.” The language could not be clearer. Neither could the Applicant’s failure to meet this expectation.
Paragraph 11.3 deals with three alternative scenarios. The first is where the non-citizen has breached the trust of the Australian community. The second is where there is an unacceptable risk that the non-citizen will breach this trust. The third is where the non-citizen has been convicted of offences in Australia or elsewhere. In any of these circumstances alone, “it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because of the nature of the character concerns or offences …”
The Tribunal considers that the Applicant has breached the trust referred to in scenario one. Having regard to the inverse proportionality between the tolerance of the Australian community and the seriousness of offences, even though the likelihood of the Applicant’s reoffending has been assessed as low, the Tribunal considers that this level of risk is an unacceptable one. Moreover, it is not disputed that the Applicant has been convicted of three very serious offences which occurred on different dates in Australia.
The Government’s views in this matter, to which the Tribunal must have due regard are reflected in the submissions, and the materials relied upon by the Respondent.
The Tribunal believes the Australian community would strongly expect that this Applicant should be refused a visa.
Conclusion: Primary Consideration C
The Tribunal accordingly finds that this Primary Consideration C is to be given weight in favour of affirming the refusal of the visa application.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 12(1) of the Direction. The Tribunal will now consider the non-exclusive list of the four stipulated sub-paragraphs (a), (b), (c), and (d).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to Vietnam. None of the evidence suggests a risk of harm were that to occur. This consideration is not relevant to determination of this application, and is given neutral weight.
(b) Impact on family members
Witness A2 told the Tribunal that she was not on any medication, and was not receiving any medical treatment for any health conditions. She said that she had been stressed caring for the baby by herself, but had not sought medical attention because of that. She said that she had never been treated for mental illness, but then said that she had been to see a psychologist firstly a “long time ago” and then “a few months ago”.
In her statutory declaration submitted prior to the hearing, Witness A2 made no mention of suffering any mental illness, and there was no expert evidence from any medical practitioner she had consulted to the effect that Witness A2 was suffering from depression.
The Tribunal accepts that Witness A2 consulted a psychologist, however there is no satisfactory evidence before the Tribunal so as to establish that she suffers from, or has ever suffered from depression, or any other mental illness.
The Applicant told Dr Chan that Witness A2 suffered from depression, and the doctor’s professional opinion in respect of the impact of visa refusal was substantially underpinned by an acceptance of the truth of what he had been told. He did not interview Witness A2, or taken any apparent steps to verify what he had been told.
The doctor’s opinion and evidence as to the impact of visa refusal on Witness A2 was heavily based on a “history of depression and current depression” on her part, which is not supported by other evidence. The Tribunal rejects this aspect of Dr Chan’s evidence.
The Tribunal is nevertheless prepared to accept Dr Chan’s evidence in so far as it relates to the possible impact of visa refusal on the child Child G.
The Tribunal also accepts that an absentee father will have an adverse impact on Witness A2.
Overall, a consideration of the impact on family members weighs slightly in favour of the Applicant.
(c) Impact on victims
There is no specific evidence of victims in respect of the offences of which the Applicant has been convicted. A consideration of this factor is therefore irrelevant, and is given neutral weight.
(d) Impact on Australian business interests
There is no evidence before the Tribunal that the refusal of the Applicant’s visa would have an impact on Australian business interests, or would significantly compromise the delivery of a major project, or delivery of an important service in Australia. The Tribunal therefore finds that this consideration is not relevant to determination of this application and gives it neutral weight.
Findings: Other Considerations
The application of the Other Considerations criteria in the present matter can be summarised as follows:
·international non-refoulement obligations: no weight;
·impact on family members: weighs slightly in favour of revocation;
·impact on victims: no weight; and
·impact on Australian business interests: no weight.
Conclusion
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by section 501(1) of the Act to approve or refuse the visa, the Tribunal finds as follows:
·Primary Consideration A weighs extremely heavily in favour of refusal;
·Primary Consideration B weighs in favour of approval;
·Primary Consideration C weighs in favour of refusal;
·Other Considerations weigh slightly in favour of approval; and
·To the extent that Other Considerations weigh in favour of approving the visa, they cannot, even when combined with Primary Consideration B, outweigh Primary Considerations A and C.
Application of the Direction therefore favours the refusal of the Applicant’s visa application.
Consequently, the Tribunal cannot exercise the discretion to set aside the decision under review and approve the Applicant’s visa.
Decision
The decision under review is affirmed.
217. I certify that the preceding 216 (two hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire
.............................[SGD]..........................................
Associate
Dated: 17 February 2021
Dates of hearing: 21 January, 22 January, and 2 February 2021 Date final submissions received: 28 January 2021 Counsel for the Applicant: Mr N Poynder Solicitors for the Applicant: Mr S John, ASM Migration Services Solicitors for the Respondent: Mr J Kyranis, Sparke Helmore ANNEXURE A – Exhibit Register
EXHIBIT No
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
G1
Section 501 G-Documents (G1 to G27 pages 1 to 195)
R
-
04 DEC 2020
A1
Applicant’s Statement of Facts, Issues and Contentions
A
24 DEC 2020
24 DEC 2020
A2
Statement of Witness A2
A
18 JAN 2021
18 JAN 2021
A3
Article entitled “Estimating drug harms: a risky business”
A
10 OCT 2009
18 JAN 2021
A4
Statement of Dr Chan with exhibited exert of Transcript attached
A
28 JAN 2021
28 JAN 2021
R1
Respondent’s Statement of Facts, Issues and Contentions
R
08 JAN 2021
08 JAN 2021
R2
Respondent’s Tender Bundle (68 pages)
R
08 JAN 2021
08 JAN 2021
ANNEXURE B
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2020/7684
General Division )
Re: GNRK
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RespondentDECISION
TRIBUNAL: Member R Maguire
DATE: 5 February 2021
PLACE: Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 9 November 2020 to refuse to grant the Applicant’s visa application.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
....................[SGD]...................
Member R Maguire
[63].
3
12
0