Hoàng Duy Nguyễn and Minister for Immigration and Border Protection

[2016] AATA 580

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2016/2655
General Division  )

Re: Hoang Nguyen
Applicant

And: Minister for Immigration and Border Protection
Respondent

DIRECTION

TRIBUNAL:              Dr Gordon Hughes, Member

DATE:   8 August 2016

PLACE:                    Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

Replace the words

The Tribunal sets aside the decision under review and in substitution decides that the Applicant's application for a Student (Temporary) (Class TU) visa is granted. 

with the words

The Tribunal sets aside the decision to refuse to grant a Student (Temporary) (Class TU) visa and in substitution makes a decision that the Applicant not be refused a Student (Temporary) (Class TU) visa under s 501(1) of the Migration Act 1958.

................................[sgd]...................................
Dr Gordon Hughes, Member

Nguyễn and Minister for Immigration and Border Protection (Migration) [2016] AATA 580 (8 August 2016)

Division	GENERAL DIVSION
File Number	2016/2655
Re	Hoàng Duy Nguyễn
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Decision

Tribunal	Dr Gordon Hughes, Member
Date	8 August 2016
Place	Melbourne

The Tribunal sets aside the decision to refuse to grant a Student (Temporary) (Class TU) visa and in substitution makes a decision that the Applicant’s application for a Student (Temporary) (Class TU) visa not be refused under s 501(1) of the Migration Act 1958.

.........[sgd].......................................

Gordon Hughes, Member

IMMIGRATION – Application for Student (Temporary) (Class TU) Visa – whether Applicant of good character – fraud and related offences – minor participant in sophisticated fraud – whether risk of engaging in further criminal conduct exists – decision substituted

Legislation

Migration Act 1958 (Cth) sections 501(1), 501(6)

Cases

Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774.

Secondary Materials

Commonwealth of Australia, Identity Crime and misuse in Australia 2013 – 2014 (2015)

REASONS FOR DECISION

1. The matter before the Tribunal concerned an application for the review of a decision made by a delegate of the Respondent to refuse the Applicant's application for a Student (Temporary) (Class TU) Visa, pursuant to section 501(1) of the Migration Act 1958 (the Act). The application was refused on the grounds that the Applicant failed to pass the character test set out in section 501(6) of the Act.

   Legislation

2. Section 501(1) of the Act provides:

   The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

3. Section 501(6) of the Act states, relevantly:

   For the purposes of this section, a person does not pass the character testif:

   …

   (c)       having regard to either or both of the following:

   (i)  the person's past and present criminal conduct;

   (ii)  the person's past and present general conduct;

   the person is not of good character; or

   (d)  in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

   (i)  engage in criminal conduct in Australia;…

   Background

4. The Applicant is aged 26 years and was born in Vietnam. After commencing study at the University of Information Technology in Ho Chi Minh City, he arrived in Australia on 27 April 2009 for the purpose of studying for a Bachelor of Business Information Systems at Swinburne University of Technology. 

5. The Applicant received financial support from his parents and an aunt but still found it necessary to work part-time jobs in order to sustain himself in Melbourne.  Evidence from the Applicant was that his part-time work, initially at a restaurant in Richmond and later at a café on the Swinburne University of Technology campus, involved long hours and minimal pay.

6. The Applicant came into contact, via Gumtree, with Mr Chris Dawn-Manuel who supplied him with mobile phones for resale over the internet. 

7. In 2011, the Applicant was charged with carrying dangerous articles on an aircraft when he attempted to take aboard 100 mobile phones which he planned to sell in Vietnam.  The phones were classified as dangerous goods because they contained batteries.

8. Evidence from the Applicant was that he had made enquiries of the courier company, TNT, beforehand and had been assured he was allowed to take the phones on the aircraft.  Whether due to his misunderstanding or incorrect advice received from TNT, he failed to realise that if he took more than two mobile phones on the plane, the batteries had to be removed. 

9. The Applicant was charged with carrying dangerous articles on an aircraft.  On 28 August 2014, he pleaded guilty in the Melbourne Magistrates' Court and received a fine of $1000. 

10. The Applicant ceased contact with Mr Dawn-Manuel from the time of his arrest in 2011 until Mr Dawn-Manuel approached him in 2013, again seeking to supply the Applicant with phones for resale.  Mr Dawn-Manuel also asked the Applicant to make fake drivers' licences which Mr Dawn-Manuel said would assist in obtaining cheaper prices per mobile phone for sale. 

11. In fact, Mr Dawn-Manuel used the fake drivers' licences to procure fraudulent credit cards which, in turn, were used to buy electronic goods which were sold online.

12. When the Applicant's house was raided by police, 44 mobile phone contracts were found in various people's names, and evidence was uncovered that the Applicant had been collating the personal information contained in those contracts so that it was more accessible for use in Mr Dawn-Manuel’s fraud operation.

13. The Applicant was arrested in September 2013 after being detained at Tullamarine Airport when leaving for Vietnam.  He was charged with handling stolen goods, supplying identifying information for the purpose of committing an indictable offence, and obtaining property by deception.

14. The Applicant was convicted in the County Court and released on a Community Corrections Order for 2 years with a special condition to perform 300 hours of unpaid community work.  The Applicant completed the community work as quickly as possible and the Order expired after 10 months. 

15. Earlier in the year, the Applicant had attended the Melbourne Magistrates’ Court in order to give evidence against Mr Dawn-Manuel. However, Mr Dawn-Manuel pleaded guilty and the Applicant was not required to testify. 

16. The Applicant obtained his Bachelor's degree from Swinburne University in March 2014 and then enrolled with Victoria University in a Masters of Applied Information Technology.

17. In May 2016, Victoria University offered the Applicant a place to study for the Masters degree. However, a week later, the Delegate decided that the Applicant failed to pass the character test pursuant to section 501(6)(d)(i) of the Act and refused to grant his application for a study visa.

18. The Applicant has been detained at the Maribyrnong Immigration Detention Centre since 17 May 2016.

    Discussion

19. The effect of section 501(1) of the Act is that the Minister may refuse to grant a visa to a person who fails to pass the character test defined in s 501(6).

20. In submissions to the Tribunal, the parties identified paragraphs (c) and paragraphs (d) of section 501(6) as being of potential relevance to the Applicant's circumstances.

21. In broad terms, section 501(6)(c) provides that a person does not pass the character test if, having regard to that person's past and present criminal conduct or past and present general conduct, the person is not of good character.

22. The essence of paragraph (d) is that a person does not pass the character test if, were they allowed to remain in Australia, there is a risk that they would engage in criminal conduct in Australia. 

23. Section 499 of the Act gives the Minister power to make and give directions to persons exercising powers under the Act.  The Tribunal is obliged to comply with any such direction where applicable.  Of potential relevance to this application, on 22 December 2014 the Minister issued Direction No. 65 – Visa refusal and cancellation under s501 and revocation under a mandatory cancellation under s501CA (the Direction)

24. Relevantly, paragraph 6.1 of the Direction sets out the objectives of the Act to be taken into account by the decision maker when considering whether to exercise the discretion to refuse or cancel a visa.

25. Paragraph 6.3 of the Direction provides a set of principles which inform the exercise of the discretion under section 501.

26. Paragraph 11 of the Direction sets out primary considerations to be taken into account by decision makers, and paragraph 12 sets out other considerations.

27. The requirement to exercise discretion is only enlivened in the event that the Applicant fails the character test.

28. The Tribunal is satisfied in this instance that, based on the evidence presented and the witnesses called on behalf of the Applicant, the Applicant passes the character test. 

29. With respect of section 501(6)(c), it is necessary for the Tribunal to determine whether the Applicant is not of good character after having regardto his past criminal conduct.  No assertions were made, relevant to sub-paragraph (i) of paragraph (c), that the Applicant was engaged in present criminal conduct or, for the purposes of sub-paragraph (ii), that there was any issue as to the Applicant's past and present general conduct.

30. The Tribunal was impressed by the Applicant's demeanour and frankness in the witness box.  He impressed the Tribunal as a person of inherently honest intent who was lured by a third person into participating in what was unquestionably serious criminal activity for a relatively brief period of time. 

31. It is beyond dispute that the third person, Mr Dawn-Manuel, was responsible for masterminding an elaborate fraud and it appears he used pressure tactics to exploit the Applicant's parlous financial situation and relatively tender years to assist in the process. 

32. The Tribunal has difficulty accepting the Applicant's assertion that he was unaware of the extent of Mr Dawn-Manuel's fraudulent activity, the purpose for which Mr Dawn-Manuel sought the fake licences or the reason he was required to input personal data from the 44 mobile phone contracts found in his possession.  However, the Tribunal ultimately considers that this is in the Applicant's past and is not reflective of his character today.

33. In this respect, the Tribunal has focussed its attention on the more serious charges brought against the Applicant in 2013.  The episode in 2011 involving the loading of mobile phones containing batteries onto an aeroplane, resulting in a fine before the Melbourne Magistrates' Court, does not strike the Tribunal as being indicative in isolation of bad character. 

34. It would appear the Applicant demonstrated genuine contrition and remorse once confronted with his crimes.  He agreed to give evidence against Mr Dawn-Manuel in the knowledge that he might still be sent to prison and that, in prison, he might be subjected to harassment if it became known amongst inmates that he had cooperated with police.

35. The Applicant's representative highlighted the fact that that the Applicant had completed his community service order in the minimum possible time, and had obtained a favourable reference from one of his supervisors during that period, Mr Jeffrey Belcher.  Notwithstanding the Tribunal's positive disposition towards the Applicant, it did not place great weight on this evidence.  There could be many reasons apart from altruism for the Applicant seeing to complete his community service order as quickly as possible, and evidence was not heard in person from Mr Belcher.

36. The Tribunal was impressed by the succession of witnesses, five in all, who provided character evidence on behalf of the Applicant.  The Tribunal heard from Thùy Phương Thị Nguyễn (a student nurse at Australian Catholic University and an Australian citizen); Anh Trịnh (the Applicant's girlfriend, a student at RMIT University who says they intend to marry); Tuấn Anh Ngô (an Australian citizen who works as an IT security engineer), Tâm Thanh Nguyễn (the Applicant's aunt who works as a kitchen hand in Melbourne); and Huy The Ho (an Australian permanent resident working as a salesman in Melbourne).

37. It is always possible to argue that evidence of an offence being out of character is self-defeating, in the sense that an out of character action in fact demonstrates that a person's character was not exactly what his or her acquaintances thought it was. Nevertheless, in this instance the Tribunal formed the opinion that the witnesses were of the genuine belief that the Applicant was a good person not predisposed to criminal activity, genuinely remorseful and unlikely to reoffend.

38. The Applicant's representative pointed to the presence of other individuals in attendance at the hearing.  They were described as supporters even though they did not provide evidence.  In the absence of oral evidence from those individuals, the Tribunal does not place any significance upon their attendance.

39. The Applicant's counsel referred the Tribunal to Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774. The following principles espoused by Lee J were considered pertinent:

    [51] The words "of good character" mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day-to-day activities and in dealing with fellow citizens... A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character…

    [52] ...The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question...

40. The Respondent's representative correctly pointed out that the case involved significantly different circumstances, given the relevant triviality of the offences under consideration in that matter and the lapse of time since they occurred.  The Tribunal shares this view.  The case does not impact on the Tribunal's determination.

41. The Respondent sought to emphasise the seriousness of the Applicant's conduct by tabling a publication by the Attorney-General's Department, Identity Crime and misuse in Australia 2013 – 2014 (2015).  The Tribunal accepts that this publication highlights the very serious potential implications of identity crime.  The seriousness of identity theft is a factor which the Tribunal has weighed up in reaching its decision but, for the reasons stated, considers that it would be unreasonable to conclude that the Applicant today is not of good character by virtue of his past conduct. 

42. With respect to sub-paragraph (i) of paragraph (d) of section 501(6) of the Act, the Tribunal is not satisfied that the evidence establishes more than a trivial risk that the Applicant will again engage in criminal conduct if he remains in Australia. Much of the above discussion is relevant to this question and will not be reiterated at this point.

43. The Respondent asserted that the Applicant had incurred significant family debts to cover his tuition and felt a financial obligation to support his family back in Vietnam, meaning that he could once again run into financial difficulties and be prone to engage again in criminal activity.  This is, of course, pure speculation.  The Applicant and several witnesses were consistent in their evidence that the Applicant had learnt from his past mistakes and would not engage in criminal conduct were he to encounter financial difficulties in the future. 

44. The representatives of each party cited different passages from the sentencing judge's remarks in the County Court when the community order was placed on the Applicant.  The Applicant's representative drew the Tribunal's attention to Judge Gaynor's observation that the Applicant had good prospects of rehabilitation.  The Respondent's representative emphasised that the comment should not be taken out of context, highlighting instead Judge Gaynor's comments about the seriousness of the offence and the fact that she called the Applicant's actions callous and selfish.

45. The Tribunal considers that the most accurate indicator of the sentencing Judge's impression of the Applicant lies in the sentence itself.  The Tribunal agrees with the Judge’s observation that the offences were significant, but notes that a relatively light sentence was imposed as an apparent reflection of the court's assessment of the seriousness of the Applicant's involvement in Mr Dawn-Manuel's fraud and the Applicant's prospects of rehabilitation.

46. Given the finding of the Tribunal in relation to the character test, it is not necessary for the Tribunal to further consider the exercise of discretion or to further consider the Direction.

    Decision

47. For the above reasons, the decision under review is set aside and the Tribunal determines that the application for a Student (Temporary) (Class TU) Visa should be granted.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of of Dr Gordon Hughes, Member:

48.      

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Associate

Dated 8 August 2016

Date of hearing	2 August 2016
Counsel for the Applicant	Gregory Hughan
Advocate for the Applicant	Adewale Oladejo
Solicitors for the Applicant	Visatec Legal
Advocate for the Respondent	Ashlee Briffa
Solicitors for the Respondent	Australian Government Solicitor