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

[2021] AATA 21

JWKG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 21 (19 January 2021)

Division: GENERAL DIVISION

File Number:          2020/6826

Re:JWKG

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:19 January 2021

Place:Melbourne

The Tribunal decides to set aside the decision of the delegate of the Respondent dated 26 October 2020. In its place, under section 43(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal substitutes a decision that the mandatory cancellation of the Applicant’s Class WE Subclass 050 – Bridging (General) visa be revoked under section 501CA(4)(b)(ii) of the Migration Act 1958.

…[sgd]………………………………………..

Senor Member D. J. Morris

Catchwords

MIGRATION – citizen of Vietnam – applicant held Class WE Subclass 050 – Bridging (General) visa – visa cancelled – substantial criminal record – applicant concedes fails character test – applicant separately refused protection visa – consideration of Direction No. 79 – primary considerations – protection of Australian community – expectations of Australian community – non-refoulement considerations – strength, nature and duration of ties – impediments to removal – decision under review set aside and new decision substituted.

Legislation
Administrative Appeals Tribunal Act 1975, ss, 18B, 33, 33A, 35
Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 72A
Migration Act 1958, ss 48A, 499, 501, 501CA

Cases
Bugmy v The Queen [2013] HCA 37
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345
Jagroop v Minister for Immigration and Border Protection (2016)241 FCR 261
Lam and Minister for Immigration and Multicultural Affairs, Re [1999] AATA 56
Minister for Home Affairs v HSKJ [2018] FCAFC 217

Secondary Materials
DFAT Country Information Report Vietnam – 13 December 2019, Department of Foreign Affairs and Trade
Memorandum of Understanding between the Government of Australia and the Government of the Socialist Republic of Vietnam (done at Hanoi on 15 June 2001)
Migration Act 1958 – Direction under s 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 28 February 2019)

Migration Act 1958 – Direction under s 499 – Direction No. 84 – Consideration of Protection Visa Applications (commenced 24 June 2019)

REASONS FOR DECISION

Senior Member D. J. Morris 

19 January 2021

GENERAL BACKGROUND

1. As the Applicant historically applied for a protection visa and certain details relating to that application are necessarily included in these reasons, on 18 January 2021 the Tribunal made an order under section 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) prohibiting the publication of his name; he will instead be known by the anonym ‘JWKG’.

2. JWKG is a citizen of the Socialist Republic of Vietnam. He was born in 1995. He arrived in Australia in May 2013 as an unauthorised maritime arrival. On 18 July 2017, JWKG was granted a Class WE Subclass 050 – Bridging (General) visa. This visa was cancelled on 13 May 2020 under section 501(3A) of the Migration Act 1958 (the Act) on the basis that JWKG had a substantial criminal record, as that term is defined in the Act (i.e. that he had been sentenced to a term of imprisonment of 12 months or more), and was serving a sentence of full-time imprisonment on the date the visa was cancelled.  JWKG made representations requesting revocation of the cancellation of his visa.  On 26 October 2020 a delegate of the Respondent decided, under section 501CA(4) of the Act, not to revoke the decision to cancel the visa.  JWKG was notified of that decision by a letter emailed to his then representatives on 27 October 2020.  It is this decision by the delegate to refuse to revoke the cancellation of the visa that JWKG has brought to the Tribunal for review.

3. A hearing was held on 7 January 2021. Because of the current public health emergency, the hearing was conducted by videoconference, under section 33A of the AAT Act and in accordance with the President’s Special Measures Practice Direction issued by the President under section 18B of the AAT Act and dated 27 April 2020. JWKG represented himself. The Respondent was represented by Mr Christopher Orchard of Sparke Helmore Lawyers. The Tribunal was assisted by an interpreter in the Vietnamese language. JWKG called three other witnesses who gave evidence by telephone: The Reverend Father Lawrence Moate, Mr Paul Campton and the Reverend Christina Campton.

4. Both the Applicant and the Respondent submitted Statements of Facts, Issues and Contentions.  The Tribunal admitted the following documents into evidence:

   (a)Submitted by JWKG:

   (i)Statutory declaration of Mr Paul Campton, declared on 6 December 2020 (Exhibit A1);

   (ii)Statutory declaration of the Reverend Christina Campton, declared on 6 December 2020 (Exhibit A2); and

   (iii)Documents obtained under Freedom of Information legislation from Fulham Correctional Centre, dated 11 December 2020 (Exhibit A3).

   (b)Submitted by the Respondent:

   (i)Volume of ‘G’ documents (GD), paginated 1 to 147 (Exhibit R1);

   (ii)Volume of supplementary ‘G’ documents (SGD), paginated 1 to 154 (Exhibit R2); and

   (iii)Volume of further supplementary ‘G’ documents (FSGD), paginated 1 to 392 (Exhibit R3).

   MIGRATION BACKGROUND

5. As mentioned above, JWKG arrived in Australia in May 2013. He was placed in detention at Wickham Point Immigration Detention Centre (IDC) in Darwin and then transferred to Pontville IDC in Tasmania.  He was then released into community detention, in Tasmania.

6. In representations made on his behalf to the Department of Home Affairs (the Department), JWKG’s then legal representatives stated that he is of Kinh ethnicity and a practising Roman Catholic.  It was submitted that JWKG has never known his biological father and that his mother died in 2009.  He has no other family.  JWKG sold his family house in Vietnam and used the proceeds to pay others to assist him to leave Vietnam and travel by sea to Australia.

7. In 2014 JWKG applied for a Temporary Protection (Class XD) Subclass 785 visa.  He was granted a bridging visa to reside lawfully in the community pending the outcome of his protection visa application.  On 22 July 2015, a delegate of the Respondent refused the protection visa application because the delegate was not satisfied that JWKG is a person to whom Australia owes protection obligations.

8. In 2015 the Applicant sought review of this decision before the Migration and Refugee Division of this Tribunal.  A hearing was held in April 2017.  On 5 June 2017, the Tribunal affirmed the decision to refuse the protection visa application (SGD, p 130). On 4 July 2017, JWKG applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision.  That application is still before the Court.

   LEGISLATIVE FRAMEWORK

9. Section 501(3A) of the Act is a mandatory cancellation power. It provides that the Minister, or his or her delegate, must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test and under section 501(3A)(b) the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.

10. A decision-maker may (under section 501CA(4) of the Act) revoke the mandatory cancellation of a visa if the person whose visa was cancelled makes representations within the relevant time period, and the decision-maker determines that the person passes the ‘character test,’ or there is another reason why the mandatory cancellation should be revoked, as provided for under section 501CA(4)(b)(ii) of the Act.

11. If the Tribunal finds that JWKG fails the character test, the sole issue before the Tribunal then becomes whether there is another reason why the original decision to cancel his visa should be revoked.  In undertaking this task, the Tribunal examines the factors for and against revoking the cancellation.  If the Tribunal, standing in the shoes of the Minister, is satisfied that the cancellation should be revoked, the Minister must act on that view and reinstate the applicant’s visa (Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345, at [38] (North ACJ)).

    Evidence in relation to the character test

12. At GD, p 24 was an Australian Criminal Intelligence Commission report dated 4 May 2020 recording that on 24 March 2020 JWKG was convicted by the County Court of Victoria of the offence of Cultivate Narcotic Plant Commercial Quantity – Cannabis.  He was sentenced to 22 months’ imprisonment with a non-parole period of 14 months (GD, p 53).  JWKG pleaded guilty to the offence and the sentencing Judge took this into account and stated that the sentence would have been seven and a half months more, had the accused been found guilty at trial.

13. At GD, p 55 was a file note from a Department officer dated 13 May 2020 recording that on that date personnel at Fulham Corrections Centre in Victoria confirmed that JWKG was serving a sentence of imprisonment on a full-time basis at that facility for the offence recorded above.

    Finding in relation to character test

14. On the evidence, the Tribunal finds that JWKG does not pass the character test under section 501(3A)(a) of the Act through the operation of subsections (6)(a) and (7)(c), because I am satisfied that he has been sentenced to a term of full-time imprisonment for a period of 12 months or more.  Both parties conceded that the Applicant did not pass the character test set out in the Act.

15. The remaining task for the Tribunal is to determine whether there is ‘another reason’ under section 501CA(4)(b)(ii) of the Act why the mandatory cancellation of the Applicant’s visa should be revoked.

    Direction made under s 499 of Act – Direction No. 79

16. Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act.  The relevant direction in this matter is Direction No. 79 (the Direction).  Under section 499(2A) of the Act, the Tribunal must comply with the Direction in considering this matter.

17. Paragraph 6.1 of the Direction states, in part:

    6.1Objectives

    (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    …

    (3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

18. The Direction has the following principles at paragraph 6.3:

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

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

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

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

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

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

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

19. In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’  Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’

20. The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and (5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.

    Applicant’s written submissions

21. JWKG contended that the Respondent’s delegate did not give proper consideration to his case.  He cited the fact that he is an orphan with no family ties to Vietnam, the fact that he departed Vietnam illegally and had no household registration papers and that, owing to a ‘data breach’ in the Department of his personal information, this would place him at greater risk of harm from the Vietnamese authorities and heighten his profile if he returned there, because they would know he had sought asylum in Australia.

22. JWKG said that he has the support of many people in the community in Australia, through the Roman Catholic Church, including people who have offered accommodation and employment support if he is released into the community.  He stated that he has only one criminal conviction which was committed in circumstances where he had no financial support for daily expenses.  He said that time in prison has enabled him to reflect on his crime and that he had been supported by Father Moate and others, and was committed not to re-offend.

    ORAL EVIDENCE AT HEARING

    The Applicant

23. JWKG gave evidence through an interpreter.  He confirmed that he is a citizen of Vietnam and that he arrived in Australia in 2013 and was released into the community on a bridging visa in April 2014.  He confirmed he has never held a permanent visa to reside in Australia.  JWKG confirmed his conviction and sentence and told the Tribunal he was due to be released from prison towards the end of March 2021. 

24. After being released into the community in Tasmania and living there for a time, JWKG confirmed he went to Sydney in 2016 and lived there until 2019, working installing aluminium windows.  He estimated that he worked for the company for more than two years and said that he worked from Monday to Saturday from 7 am to 5 pm.

25. JWKG confirmed that he had been on Centrelink benefits before he obtained full-time employment.  He then notified Centrelink and they stopped paying him benefits.  JWKG said that he was aware that his employer paid superannuation into an account, but he did not know how much was in his superannuation account.

26. JWKG said that he started gambling in Sydney in the company of friends but could not say the exact time he began.  He confirmed to the Tribunal that he obtained a bank loan in the amount of $50,000 and a line of credit on his credit card in the amount of $10,000.  He said that all these funds, of around $60,000, had been spent on gambling and on his daily living expenses.

27. JWKG confirmed that he also had a debt for a mobile telephone plan, which he estimated was around $2,000 and which he had been paying off at a rate of $100 per month before his incarceration.  In terms of his bank loan, the Applicant said that he knew he had to repay $1,000 per month for a period of seven years.  He said he had only paid ‘three or four years’ off the loan.

28. JWKG could not remember exactly when he obtained the bank loan, but guessed it was in his second year of employment, so in around 2017.  In early 2019 he said he lost his job fitting windows because the company was receiving fewer contracts and he was in a group of employees who were retrenched.

29. It was suggested to the Applicant that he moved from Sydney to Melbourne to take up a job cultivating illegal drugs for commercial sale.  JWKG said that the purpose of him moving to Melbourne was to look for a stable job in order to pay off his debt, not to grow cannabis.

30. The Applicant said after he had been in Melbourne for about a month, he went to a café and was introduced by a mutual friend to a person who he knows only as ‘John’.  At the time, he said that he had been unsuccessfully looking for employment in a similar trade in Melbourne to the job he had in Sydney and John offered him a job to ‘water plants’ for $200 a day.  He said that he was told he would earn enough money to pay off his loan debt.  JWKG said he also had a small debt to repay Centrelink because there was an overlap in the cessation of benefits when he commenced work in 2016.  JWKG said he initially refused the job offer from John but later changed his mind when he continued to have no income and decided to undertake the task.

31. JWKG was asked whether he initially said ‘no’ to the job offer because he knew the activity was illegal.  The Applicant responded that he ‘didn’t really know whether it was legal or illegal’.  He denied that he came to Melbourne to become involved in growing drugs.  JWKG said when he changed his mind and agreed to accept the job offer with John, he told mutual friends and John rang him and arranged for him to rendezvous and go to a house, with others, to tend to the plants there.  The Applicant said that John also installed an application on JWKG’s mobile telephone which linked to a security camera system at the house.  He said that John told them to ‘run if the police come’.  When pressed by the Tribunal that he must therefore have known that the activity in which he was involved was not lawful, JWKG conceded that he did, but that he did not know the ‘level of severity of the activity’.

1. JWKG submitted that the time he has spent in prison is long enough for him to have paid for his offence.  He said that he had reflected on his wrong-doing and would like another chance to show he can be of good conduct.  He said, in addition, the cancellation of his visa had been a significant factor in providing a reason for him not to re-offend.

2. The Applicant said he had offers of free accommodation and some support if he is allowed to stay in Australia, which would assist him financially while he looks for employment.  When asked what his current indebtedness is to the bank, JWKG said he was not sure, because he had not received bank statements while in prison.

3. JWKG said that apart from the witnesses he was calling, he had other friends in Australia who would be supportive, but no family or friends in Vietnam.  He said he is an only child and was unaware of any uncles or aunts or other relatives of his late mother.  He confirmed that he spoke Vietnamese and was fit and healthy.

4. In answer to direct questions from the Tribunal, JWKG confirmed that his parents had both died and that he sold the family house to fund his passage to Australia.  He said that he had a girlfriend who he had met in Melbourne at the time of his arrest, but that relationship subsequently ended.  JWKG said he had no children in Australia.

5. JWKG said that he would take up the offer made by Mr and Mrs Campton to stay with them in Hobart should he be allowed to remain in Australia.  He said that he had previously worked for a short time on a cherry farm in Southern Tasmania and would hope to go to look for work installing windows or undertaking similar work in Tasmania.  He said that he would still intend to repay his bank loan, once he had an income.

   The Revd. Father Lawrence Moate

6. Father Moate gave evidence by telephone.  He had made statements dated 4 June 2020 and 25 August 2020 (GD, pp 108–111).  Father Moate said it was his opinion that JWKG was a person of honesty and high standards.  He said that his view was that the Applicant had learned his lesson and felt he would be ‘most unlikely’ to offend again, and, having known JWKG for many years, he would go so far as to say he has confidence that the Applicant would not offend again.  Father Moate said that, apart from the lapse that resulted in his conviction, JWKG had displayed to him only good qualities.

7. Under cross-examination, Father Moate said that he had not discussed in detail how the Applicant came to be in such significant debt.  Father Moate said that he had visited JWKG regularly in prison and knew only that he had got a bank loan.  He said that the question of gambling had never come up in their conversations.

8. Father Moate said that he had offered for JWKG to stay at Don Bosco House, a hostel run by the Salesian society within the Roman Catholic Church.  He said that this hostel accommodates around 35 young people, but the pandemic had now prevented them adding any new residents.  Father Moate said that he was aware that a family in Tasmania who have experience with asylum-seekers was ready to provide accommodation to JWKG if he is allowed to stay.  He confirmed in response to a direct question from the Tribunal that the family he was referring to is the Campton family.

   Mr Paul Campton

9. Mr Paul Campton gave evidence by telephone.  His statement (Exhibit A1) was before the Tribunal.  In it he states that he came to know JWKG as a member of the same congregation in Hobart.  Mr Campton confirmed that he and his wife had offered accommodation at their house in Hobart to JWKG.  Mr Campton said that they had worked in the past with former detainees and refugees, and also with released prisoners.  Mr Campton told the Tribunal he is a retired teacher and his wife is a priest in the Anglican Church.

10. Mr Campton explained that their own children had grown up and they had a large house with ample accommodation for the Applicant.  He said that they had tutors in the English language arranged and career counsellors to help the Applicant find employment.

11. Under cross-examination, Mr Campton said that he had kept in regular contact with JWKG since he left Tasmania, and he and his wife lunched with the Applicant in Sydney (which he later corrected to be in Melbourne) before he was arrested in relation to the drug cultivation offence.  He said that when he spoke to JWKG about two weeks before the hearing he did so through an interpreter, and the Applicant had indicated deep remorse for his offending.

12. Mr Campton said his understanding of the nature of JWKG’s offending was that he was a ‘crop sitter’ for a commercial quantity of cannabis, visiting the crop ‘six or seven times for small financial reward’, and that he had pleaded guilty.  Mr Campton said he had read the sentencing remarks and noted that the Judge had referred to a gambling debt and that the accused had found himself in poor financial circumstances.

13. Asked whether he had discussed the Applicant’s gambling addiction with him, Mr Campton said that he planned to address that as part of the counselling and rehabilitation that would be offered if JWKG came to live in his household.

14. In answer to direct questions from the Tribunal, Mr Campton said the first part to obtaining employment for JWKG was improving his English, and the second part was putting him in contact with potential employers, and he had good experience in both of those areas.

15. The Tribunal referred Mr Campton to the conclusion of Ms Carla Lechner, clinical psychologist (who examined JWKG in February 2020 to prepare a report for the Court), that the Applicant was ‘cognitively immature’ and of ‘low average intelligence’ (GD, p 119), and asked whether he felt this would affect the Applicant’s ability to obtain employment.  Mr Campton said that he would not see JWKG as falling into a category of someone unable to obtain employment because of cognitive deficits, as he had seen him undertake productive social activities.  Mr Campton felt that there were many types of work JWKG could usefully do.

    The Revd. Christina Campton

16. Mrs Campton gave evidence by telephone.  Her statement dated 6 December 2020 was before the Tribunal (Exhibit A2).  She told the Tribunal that she is an ordained Minister in the Anglican Church.

17. She said that she had not discussed the Applicant’s offending with him in person but knew from the papers JWKG had provided to the Department, which she had seen, that JWKG had been involved in tending marijuana plants on six or seven occasions for payment.  She said she was aware from these papers that JWKG had got himself into debt through gambling.

18. Mrs Campton said she thought any re-offending would be unlikely because of the protective measures that would be available for JWKG if he remains in Australia.  She said that her impression directly from him was that he is deeply ashamed of his actions.

19. Asked about Ms Lechner’s conclusions, Mrs Campton said she had seen JWKG learn manual tasks quite quickly but she felt his lack of English had set him back, and he had not had to learn as much because he had predominantly mixed with a group of other Vietnamese-speaking people, so could converse in that language.

    CONSIDERATION OF THE DIRECTION

    Primary consideration: Protection of the Australian community (paragraph 13.1)

20. The Direction states that when considering the protection of the Australian community, decision-makers (i.e. the Tribunal) should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.  There is an expectation that for a non-citizen to remain in Australia (on a visa), they will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the broader community.  The mandatory cancellation without notice of visas held by certain non-citizen prisoners is consistent with this principle because it ensures that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

    The nature and seriousness of the conduct (paragraph 13.1.1)

21. This part of Part C of the Direction requires the Tribunal to have regard to certain factors. 

    The principle that, without limiting the range of offences that may be considered, violent and/or sexual crimes are viewed very seriously (paragraph 13.1.1.(a)) 

22. There is no evidence that JWKG was involved in a violent or sexual crime.  However, his involvement in facilitating the commercial production of illicit drugs brings his offending into the sphere of being serious, because while he may be a small cog in a commercial drug enterprise, it is the small cogs that enable the significant drug dealers to conduct their insidious operations.

    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed (paragraph 13.1.1(b)) 

23. This principle is not relevant to the single offence of which JWKG has been convicted.

    The principle that crimes against vulnerable members of the community (such as the elderly and disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious (paragraph 13.1.1(c))

24. This principle is not relevant to the offence of which JWKG has been convicted although, by extension, it could be put that persons who are using or addicted to illicit drugs are in a category of vulnerable members of the community.

    The sentence imposed by the courts for a crime or crimes (paragraph 13.1.1(d))

25. JWKG received a significant sentence, especially for a first-time offender.  When submissions were put to the sentencing Judge by JWKG’s lawyer that a sentence to be counted in months rather than years, coupled with a Community Corrections Order, the learned Judge rejected that proposition (GD, p 51).  His Honour did take into account, applying what are called the Bugmy principles (Bugmy v The Queen [2013] HCA 37), the deprivations of JWKG’s childhood and the psychological report prepared by Ms Lechner that JWKG was ‘cognitively immature and depressed…’  His Honour concluded that the social deprivation suffered by JWKG in Vietnam and his refugee experience is not such that culpability should be mitigated (GD, p 52).  The Judge also considered submissions relating to potential migration status consequences for JWKG.

26. His Honour accepted submissions that the Applicant is, by reason of his age, someone for whom rehabilitation must be firmly considered and referred to a ‘resilience’ in JWKG’s character reported by Ms Lechner.

27. However, the Court concluded that the nature of the offence under section 72A of the

    
    Drugs, Poisons and Controlled Substances Act 1981

    (Vic) warranted a prison sentence of 22 months.  His Honour noted (GD, p 28) that the maximum sentence prescribed by the Victorian Parliament for offences under this section is 25 years.

28. The Tribunal finds that JWKG has been convicted of a serious offence.  While his involvement in the commercial cultivation of the cannabis crop may reasonably be classified as not central to the operation, it equally was not peripheral.  His watering of the plants, even for a contained period, was essential to their growth.  While the consistent evidence in the papers before the Tribunal is that JWKG watered the crop ‘six or seven’ times, he knew what he was doing was illegal, and admitted so to the Tribunal.  This is in fact consistent with his guilty plea. 

    The frequency of the Applicant’s offending and whether there is any trend of increased seriousness, and the cumulative effect of repeated offending (paragraphs 13.1.1(e) and (f))

29. These principles are not relevant to JWKG’s criminal offending.  He has only one offence recorded in Australia or Vietnam.  There is no trend of increased seriousness, albeit this single offence is serious, and there is no evidence of repeat offending.

    Whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending (paragraph 13.1.1(g))

30. There was no evidence before the Tribunal that JWKG had done this.

    Whether the Applicant has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of his migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour) (paragraph 13.1.1(h))

31. There was no evidence in the papers before the Tribunal of any warning given by the Department to JWKG about his conduct, and nor was such a submission made by the Respondent.  Inherently, though, the Tribunal considers that JWKG knew he was on a non-permanent visa, and consequently knew there could be immigration consequences should he breach the law in Australia.

    Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention, including an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act (paragraph 13.1.1(i))  

32. There was no evidence before the Tribunal of any misconduct by JWKG while in immigration detention.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)

33. The Respondent submitted that cannabis is the most widely used illicit drug in Australia and that the long-term effects of cannabis use include various serious physical conditions and mental health symptoms.  Significantly, the Respondent drew the Tribunal’s attention to the fact that cannabis has been identified as the second most common drug identified at toxicology for transport accident deaths.

34. The Respondent submitted that JWKG’s gambling difficulties, which led to his indebtedness, which in turn led to his offending, remain unaddressed, which increases the risk of re-offending.  Mr Orchard submitted that the Minister considers that there is not ‘no risk’, or only ‘a low risk’, of JWKG re-offending, given the precursors that led to his offence and the lack of a firm employment pathway, and that even if the Tribunal concluded there was a low risk, it remains, in the Respondent’s submission, an unacceptable risk.  In this respect, the Respondent drew the Tribunal’s attention to paragraph 6.3(6) of the Direction, which states:

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

35. The Tribunal also takes into account the evidence of Father Moate and Mr and Mrs Campton.  It is important in this consideration that these three individuals have known JWKG since he was released into the community in 2014, a period of some six years, and have maintained regular contact with him, even while he was living in another State.  All of the witnesses spoke of the good qualities of JWKG’s character and it would be reasonable to say that all were of the view that the offence of which the Applicant was convicted was out of character and driven by the need for money for sustenance.  It is also relevant that he did not disclose to any of them his gambling debt (which could be said to be linked to his vulnerability to offers to be involved in this illegal activity) until after he was arrested.

36. This is not a case where an applicant with a substantial criminal record, in the terms defined in the Act, has a list of criminal offending.  JWKG has only one offence recorded against him, admittedly a serious one that the Court concluded warranted a sentence of imprisonment.  There was no evidence that JWKG was involved in getting a ‘slice’ of the proceeds from the commercial production of the cannabis, nor that he was involved in the establishment of the hydroponic apparatus in the house where he was arrested.  His involvement, as outlined in the sentencing remarks, was confined to attending the house on some six or seven occasions to water the crop.  It is notable that submissions were made to the Court by the defence that it is not uncommon for drug dealers to deliberately target newly arrived visa holders to undertake menial tasks in their operations, because such people are more vulnerable to direction because they are anxious about their immigration status.

37. Having committed an offence, the view of the late Justice Mathews, sitting as a presidential member of this Tribunal, in Re:Lam and Minister for Immigration and Multicultural Affairs, [1999] AATA 56, is apposite. Her Honour said, at [51]:

    Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.

38. However, the Tribunal considers, based on all the evidence before it, that there is a low risk of JWKG re-offending.  On his evidence, and the evidence of the other witnesses, JWKG appreciates that his involvement in the crop-sitting activity has led to serious consequences — a relatively substantial prison term (certainly a substantial one for a first-time offender), and the cancellation of his visa.  The Tribunal considers that the low risk of re-offending would fall even lower if the Applicant had reliable accommodation, and lower again if he secured stable employment, as he had in the past.  JWKG’s gambling problems remain a concern, especially the fact that he appears not to have been frank about them to his Tasmanian friends who gave evidence, but I consider that may have more to do with the language barrier than any real attempt to be evasive.

39. Overall, the Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of JWKG’s visa, but on the consideration of all the sub-parts of this part of the Direction, not heavily so.

    Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 13.2)

40. The Direction requires the Tribunal to make a determination about whether the revocation of the visa is in the best interests of any relevant minor child.  There is no evidence that the interests of any such child is affected.  JWKG confirmed to the Tribunal that he did not have any children in Australia, nor did his former girlfriend have any children.

41. The Tribunal finds that this primary consideration weighs neutrally. 

    Primary consideration: Expectations of the Australian community (paragraph 13.3)

42. The first part of this part of the Direction states:

    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 not to revoke the mandatory visa cancellation of such a person.  Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa.  Decision-makers should have due regard to the Government’s views in this respect.

43. This part of an earlier (superseded) version of the Direction was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR).  The wording in the current Direction is relevantly the same.  The majority of the Court found that this part of the Direction expresses a ‘norm’.

44. The Court decided that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be.  In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not presumptions or assessments that a decision-maker may derive by some other assessment process. 

1. Justice Charlesworth stated at [68]–[74]:

   The content of the expectation

   It is necessary to give content to the deemed expectation of the Australian community in a way that is capable of being afforded weight as a primary consideration in a particular case.  In the particular case, the Australian community will either expect the visa to be refused, or it will not.  In light of what is said above, the present enquiry does not concern what the Australian community expects in fact (assuming such expectations could be objectively ascertained), but rather concerns what the government has deemed the community’s expectations to be.  The content of the deemed expectation is to be discerned by construing cl. 11.3 itself.

   The clause expresses two expectations, the first concerning norms of conduct to be expected of non-citizens, as expressed in the opening sentence:

   The Australian community expects non-citizens to obey Australian laws while in Australia.

   This statement is a reflection of the rule of law as it applies to citizens and non-citizens alike.  It is an expectation that will not have been met in respect of a visa applicant who cannot pass the character test in s 501(6) of the Act and so must, of its nature, weigh against the refusal of a visa in all cases to which the Direction applies.

   The second expectation is more difficult to interpret.  It is expressed in the second and third sentences of the clause as follows:

   Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person.  Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.

   This part of the clause is concerned with the consequences that should befall a non-citizen who has fallen foul of the first expectation.  It should be understood as expressing an expectation about the outcome of the exercise of the power conferred by s 501(1) of the Act in respect of the particular person whose circumstances are under consideration.

   Before proceeding further it must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do.  The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl. 11.3 of the Direction.  The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.

   I have accepted the Minister’s submission that cl. 11.3 is intended to give effect to the principle that the Minister may make a statement of the government’s views about the expectations of the Australian community, which statement may be acted on by the person conferred with the power in a particular case, as recognised in Uelese [v Minister for Immigration and Border Protection [2016] FCA 348].  In my view, the task of the decision-maker is to identify what is the “government’s view” about community expectations in the particular case, to ‘have due regard’ to that view and to “generally” afford that view more weight than other non-primary considerations in accordance with cl. 8(4).  The phrase “may be appropriate” does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl. 11.3) with the decision-maker’s own view as to the preferable outcome in the ultimate exercise of the discretion.  To construe cl. 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to “other considerations” in the exercise of the discretion, as cl 8(4) of the Direction generally requires.  The primary judge was correct to say that importing into cl. 11.3 all countervailing factors bearing on the ultimate decision would render cl. 8(4) of the Direction unworkable.

2. In a separate judgment, Stewart J stated, at [100]–[101]:

   To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:

   ·non-citizens will obey Australian laws when in Australia;

   ·it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;

   ·in a particular case, the refusal of the visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.

   Understood in this way, community expectations are simply, and informally, expressed 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.”

   (Emphasis added.)

3. His Honour said (at [102]) that ‘the character assessment, even through the prism of community expectations, may not be decisively against the applicant’.  Therefore, the decision-maker must assess what is ‘appropriate’ in the circumstances.

4. On 24 April 2020, the High Court of Australia refused special leave to appeal the Full Court decision in FYBR. 

5. JWKG’s single appearance before an Australian court was in relation to the offence for which he pleaded guilty and was sentenced on 24 March 2020 by the County Court of Victoria.

6. The Tribunal’s view is that, with the knowledge of this criminal record, the Australian community, in the context of that term in this part of the Direction, would not expect him to hold a visa to remain in Australia.  While the community may temper that view by the fact that this was a single offence, it was nonetheless a serious offence, as reflected by the sentence imposed by the Court. 

7. The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa.  The weight that is given to this particular consideration is affected, in the Tribunal’s view, by the circumstances of the offending.  The monetary gain JWKG received for his involvement in the drug operation was relatively meagre, and the opinion of a clinical psychologist who examined JWKG was that he was of ‘low average intelligence’.  The Tribunal finds that the weight that is given to this primary consideration against the Applicant is therefore lessened.

   Other considerations

   International non-refoulement obligations (paragraph 14.1)

8. This consideration requires a decision-maker to consider whether any of Australia’s international treaty obligations may be agitated in a particular case.

9. The Tribunal notes that JWKG has previously been refused a protection visa.  As mentioned earlier in these reasons, the Applicant sought review of that decision before this Tribunal (differently constituted) and Member Symons made a decision in June 2017 to affirm the decision not to grant a protection visa (SGD, pp 130–154).  The Tribunal has read those reasons which carefully considered various claims JWKG had made that he risked harm if repatriated to Vietnam, and with respect agrees with and adopts the conclusions of the Member, noting in particular the conclusions made by the Tribunal at paragraph 129 of that earlier decision. 

10. I accept that JWKG left Vietnam illegally, and then travelled to Australia and entered this country illegally. During the hearing, the Tribunal requested that a copy of the Memorandum of Understanding (MOU) between the Australian Government and the Vietnamese Government be provided. This was provided by the Respondent after the hearing. As some of its contents relates to diplomatic considerations between two Governments, the Respondent requested that a confidentiality order be issued in relation to this document, and the Tribunal agreed to that, and made a relevant order under section 35 of the AAT Act. The Tribunal has perused the MOU, but it relates essentially to technical matters and is not in my view relevant to the particular representations made by the Applicant.

11. However, using the powers available under section 33 of the AAT Act, the Tribunal also considered the DFAT Country Information Report Vietnam, dated 13 December 2019 (CIR), produced by the Department of Foreign Affairs and Trade (DFAT).  The CIR is produced for protection status determination purposes only (see Direction No. 84 made by the Minister under section 499 of the Act on 24 June 2019), but it contains relevant information for me in assessing this part of Direction No 79. 

12. In terms of JWKG’s professed Roman Catholic Christian faith, the CIR states that ‘DFAT assesses that [Vietnamese] Catholics who belong to registered churches and are not politically active face a low risk of official harassment’ (see paragraph 3.37).  It is notable that JWKG’s claims in this respect centred on what he had heard about other persons, not any personal experience he himself had, as a regular Christian service attendee in Vietnam.

13. JWKG also made claims to the delegate and at the hearing that he may face sanction if repatriated because he left the country illegally.  The CIR states, at paragraph 5.27:

    Vietnamese nationals who depart the country unlawfully, including without travel documents, may be subject to a fine upon return.  Article 17 of the Decree on Sanctions of Administrative Violations in Social Security, Order and Safety, Prevention and Fighting of Social Evils, Fire and Domestic Violence mandates a fine of between VND3 million (AUD187) and VN5 million (AUD310) for crossing a national border without undergoing official exit procedures… In practice, the implementation of this legislation varies depending on the person and the circumstances of the illegal departure.

14. The CIR, at paragraph 5.28, discusses the Penal Code provisions relating to persons ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ and states that substantial prison sentences may be imposed.  However, paragraph 5.29 goes on to say:

    DFAT is unaware of any cases where these provisions have been used against failed asylum seekers returning from Australia.  Returns to Vietnam are usually done on the understanding that the individuals in question will not face charges as a result of making an application for protection.

15. And at paragraph 5.31:

    DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam.  The interview process generally takes between one to two hours, and focuses on obtaining information about the facilitation of any illegal movement on their part.  DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.

16. And at paragraph 5.35:

    DFAT assesses that the government typically views persons who paid money to organisers of people smuggling operations as victims of criminal activity rather than as criminals themselves.  Such individuals are unlikely to be subjected to the penalties allowed in the law for illegally departing Vietnam.  DFAT assesses that long-term detention, investigation, and arrest is generally conducted only in relation to those suspected of involvement in people-smuggling operations.

17. The Applicant did not depart Vietnam, in the Tribunal’s understanding, because he was ‘opposed’ to the Government, but for other reasons.  The Tribunal places significant weight on the CIR in concluding that his claims of incarceration if repatriated are not well-founded.

18. In this hearing, the Applicant did not make any fresh submissions about his concerns if he were to return to Vietnam, except to say that he has no family there, being an only child of one deceased parent, and another absent and (in his view) possibly deceased parent, and that he has no friends there.  JWKG said, in his Statement of Facts, Issues and Contentions:

    I have no family members in Vietnam and have no future there.  My future is in Australia amongst people who supported me.  I am determined to make them proud of me.

19. I do not conclude, on the information before me, that JWKG’s claims about consequences that may await him on repatriation rise to the level that would invoke Australia’s non-refoulement obligations. 

20. The Tribunal finds that this consideration weighs neutrally in this assessment.

    Strength, nature and duration of ties (to Australia) (paragraph 14.2)

21. The Direction requires decision-makers to have regard to how long a person has resided in Australia, noting that less weight should be given when the non-citizen began offending soon after arrival in Australia and, on the other hand, more weight should be given to time the person has spent contributing positively to the community.  The Tribunal must also consider the nature of any family or social links with Australian citizens or permanent residents, including the effect of non-revocation on them.

22. The Applicant arrived in Australia in 2013.  On release from immigration detention he first worked in a voluntary capacity tending the garden at St John’s Church in Glenorchy, Tasmania.  He later got a short-term job on a cherry farm in Tasmania.  On moving to Sydney, he obtained employment with a company that installed aluminium windows.  He told the Tribunal that this was full-time employment, for six days a week, for a period of around three years.  The Respondent submitted that there was no evidence to corroborate that this was full-time employment.  Equally, there was no evidence that it was not, and the evidence of the three other witnesses was that they knew about the job.  I can see no reason why the Applicant would mislead the Tribunal about the hours he worked.  I therefore consider that, during this period, he made a positive contribution to the Australian economy and community.

23. His single offence occurred in May 2019, which was some six years after his arrival in Australia and around five years after he was released into the community. 

24. As mentioned earlier, the Applicant does not have family of his own in Australia.  He does have a circle of friends in Melbourne and Sydney, and particularly in Tasmania, three of whom gave oral evidence.  The Tribunal found that the evidence of Father Moate and Mr and Mrs Campton was significant.  There was consistent evidence of an historical friendship with the Applicant since he first was released from the Pontville IDC, one that has been maintained through regular contact even after the Applicant moved to the mainland.  Their assessment of his character as generally worthy is important in this consideration.

25. The fact that Mr and Mrs Campton have previous experience in housing refugees and released prisoners and helping them in their rehabilitation and in finding employment weighs strongly in regard to this consideration.  It was clear that JWKG wanted to embrace this offer and return to Tasmania to live with the Camptons in their house and make a fresh start, once released from prison and if allowed to remain in Australia.  The articulated plans for English language tutoring and career counselling are also important in the Tribunal’s conclusion that this would be a significant protective factor in JWKG’s rehabilitation and against recidivism.

26. The Tribunal finds that this consideration weighs in favour of revoking the cancellation of the visa, and relatively heavily so.

    Impact on Australian business interests (paragraph 14.3)

27. The Direction provides that the Tribunal should consider any impact on Australian business interests if a non-citizen’s visa is not revoked, noting that an employment link would generally only be given weight where not restoring the person’s visa would significantly compromise the delivery of a major project or important service in Australia.

28. While the Applicant’s evidence of stable employment in Sydney in the construction industry for around three years is accepted by the Tribunal, I do not consider that this rises to the level that would require consideration under this part of the Direction.

29. The Tribunal finds that this consideration is not relevant and weighs it neutrally in this assessment.

    Impact on victims (paragraph 14.4)

30. The Direction provides for the Tribunal to take into account any information available where a victim of a person’s offending may be aware of the immigration status of the person.  The Respondent submitted that there is no evidence relevant to this consideration, and the Tribunal accepts that submission.

31. This consideration therefore weighs neutrally.

    Extent of impediments if removed (paragraph 14.5)

32. The Direction requires the Tribunal to consider the extent of any impediments that JWKG may face if removed from Australia to Vietnam, in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of that country.  Factors that should be taken into account are the Applicant’s age and health, any substantial language or cultural barriers, and any social, medical and/or economic support available to him in Vietnam.

33. JWKG’s own evidence at the hearing was that he is in good health.  He told Ms Lechner that he was not on any current medication.  JWKG confirmed to the Tribunal that he speaks Vietnamese and there is no evidence before me of any cultural barriers.  Mrs Campton in her evidence noted that he has a circle of Vietnamese friends in Australia with whom he has mixed, so it is reasonable to conclude that he has maintained some cultural linkages.

34. While the Tribunal accepts that the social and economic support, and health care, that would be available to JWKG if he is repatriated are not comparable to that available to him in Australia, that is not the measure set out in the Direction.  The correct yardstick is to examine the situation of the Applicant in the context of what would be available to him as a Vietnamese citizen in company with other Vietnamese nationals in that country.  There was no evidence before the Tribunal of any special considerations that might be relevant to JWKG in this respect, which might create some special impediment if he is repatriated.  He would have the same access to social support as would any other citizen of Vietnam.

35. The Tribunal finds that this consideration weighs neutrally in this assessment.

    CONCLUSION

36. The Tribunal has weighed all the relevant considerations in the Direction.  One of the primary considerations is not relevant to his circumstances.  Of the other two primary considerations, both weigh against revoking the mandatory cancellation of the visa, but neither of them heavily, nor in the Tribunal’s view, determinatively.  In regard to the other considerations, all of them have been found by the Tribunal to weigh neutrally except for the consideration relating to the strength and nature of JWKG’s ties to Australia.  This consideration is found to weigh in favour of the Applicant and, for the reasons set out above, relatively heavily.

37. The Tribunal is not limited only to the consideration of the factors set out in the Direction in making its considered assessment as to whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa.  In this consideration, the Tribunal notes that JWKG held down a good job for some three years, paid taxes and was a productive member of the community.  He took out a bank loan, bought a car and used some of the funds for living expenses. 

38. Unfortunately, JWKG also became involved in gambling, and fell, relatively heavily, into debt.  At this time, he also lost his job; it would appear on the uncontested evidence through no fault of his own.  Unfortunately, this added to the financial pressure he was under.  He became vulnerable to the influence of criminal elements.  It may be that because of his low average intelligence, as professionally assessed, that he was suggestible.  However, it was not accepted by the Court that his low intelligence diluted his culpability for his criminal offending, and such a proposition is also not accepted by the Tribunal. 

1. However, it is important that the nature of the offending is carefully considered.  The Applicant received relatively small financial gain from his involvement in watering the cannabis crop on around six or seven occasions and was not involved in the setting up of the drug operation.  There is no evidence that he stood to benefit from the ultimate sale of the cannabis.  Because he admits that he knew what he was doing was wrong, JWKG cannot be regarded as a dupe, but equally he was not a significant player in this enterprise.  The sentence he received reflected the provisions in the Victorian legislation, which in turn rightly reflect community concerns about the infiltration into our society of illegal drugs.

2. The Tribunal notes (Exhibit A3) that the officers of Fulham Correctional Centre have consistently provided reports of JWKG’s conduct which reflect well on him in prison.  Before the Tribunal (GD, p 106) was a report from a Kangan TAFE English teacher dated 3 September 2020.  She recorded that JWKG “always works well in class and has a positive attitude towards his studies”.  She records that he was a regular attender at the classes and worked conscientiously, was polite and well-behaved.  Father Moate recorded in his statement (GD, p 109) that when he had a serious fall and broke his shoulder, JWKG took leave from his job in Sydney and travelled back to Tasmania to help Father Moate in showering and dressing and getting to medical appointments, during his convalescence.   

3. Paragraph 8(4) of the Direction states that primary considerations should generally be given greater weight than other considerations.  However, the Tribunal in consideration whether there is ‘another reason’ under section 501CA(4)(b) of the Act necessarily requires me to take into account the totality of the Direction, and any other relevant factor consistent with the Act.  Referring to an earlier but relevantly similar version of the Direction, the Full Court of the Federal Court of Australia said in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 at 473 [57]:

   Notwithstanding these features, as the Minister submitted, the terms of Direction No 55 to not purport to direct a decision maker as to the outcome of the s 501(2) residual discretion in relation to any given individual, or categories of individuals.  Further, by the use of  qualifying words such as “generally” (for example, in cl 8(4) that primary considerations “should generally be given greater weight than the other considerations”), the weighing process in each case is in substance left, as it must be, to the individual decision maker exercising the power under s 501.

4. It has been held by the Full Court of the Federal Court (Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [35]) that the Tribunal would err if it concluded that an ‘other consideration’ in the Direction was incapable of outweighing a primary consideration.

5. The Tribunal, in examining all the considerations and the circumstances of the Applicant overall, has concluded that the weight of the primary consideration relating to the strength of JWKG’s ties with Australia does outweigh the two primary considerations which, if not heavily, do weigh against him.  JWKG is a young man of below average intelligence who committed one offence.  It was a serious offence.  But there is no evidence of any other criminal behaviour by him, or other serious conduct that did not lead to prosecution but that might be relevant in this assessment. 

6. There is uncontested evidence of the Applicant’s good character in other respects in undertaking voluntary work and helping someone convalescing from an accident.  There is also evidence that he was able to obtain and hold regular, full-time employment.  The Tribunal is satisfied that significant protective features are ready and available to surround him on release from prison.  The Applicant said he was keen to take up the accommodation offer in Tasmania, with people he already knows well, who gave evidence to the Tribunal of their support, and who have experience in assisting other recently released prisoners.  This factor, together with a positive environment and prospects of obtaining employment and improving his English, would be strongly protective against JWKG further offending and, in the Tribunal’s view, augurs well for his complete rehabilitation, as does his good conduct in gaol. Should he decide not to avail himself of this proffered offer, JWKG is completely aware that the Minister retains the option to cancel his bridging visa at any time if the conditions on which it is granted are breached.  After careful consideration in this particular case of a single, albeit serious, offence and concrete positive indicators for rehabilitation and a settled and law-abiding future, the Tribunal finds that the preferable decision is that the discretion provided in the Act should be exercised in favour of the Applicant.

   DECISION

7. The Tribunal decides to set aside the decision of the delegate of the Respondent dated 26 October 2020. In its place, under section 43(1) of the Administrative Appeals TribunalAct 1975, the Tribunal substitutes a decision that the mandatory cancellation of the Applicant’s Class WE Subclass 050 – Bridging (General) visa be revoked under section 501CA(4)(b)(ii) of the Migration Act 1958.

I certify that the preceding 120 (one-hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 19 January 2021

Heard:	7 January 2021
Date final submissions received:	14 January 2021
Applicant:	Represented himself
Advocate for the Respondent:	Mr Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers