JZGW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 3436

JZGW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3436 (19 October 2022)

Division:GENERAL DIVISION

File Number:          2020/5040

Re:JZGW  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member D. J. Morris

Date:19 October 2022

Place:Melbourne

Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

........................................................................

Senior Member D. J. Morris

Catchwords

MIGRATION – remittal – applicant is citizen of Vietnam – applicant held spouse visa until that visa cancelled – cancelled because of substantial criminal record – applicant invited to make representations to Department – delegate of minister refused to revoke visa cancellation – review by Tribunal – Tribunal affirmed decision – Federal Court quashes Tribunal decision and remits for fresh consideration by Tribunal – new direction since last heard – Direction No. 90 – primary considerations – single offence of major drug trafficking over extended charging period – applicant has minor children in Australia – other considerations – impact on applicant’s health of repatriation – decision under review is affirmed

Legislation

Acts Interpretation Act 1901 (Cth), s 7(2)(c)
Administrative Appeals Tribunal Act 1975 (Cth), s 33A
Migration Act 1958 (Cth), ss 499, 501, 501CA

Sentencing Act 1999 (Vic), s 89DI

Cases

FYBR v Minister for Home Affairs (2019) 272 FCR 454

Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48

Secondary Materials

Department of Foreign Affairs and Trade - Country Information Report Vietnam – 11 January 2022 (Department of Foreign Affairs and Trade)

Migration Act 1958 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 15 April 2021)

REASONS FOR DECISION

Senior Member D. J. Morris

19 October 2022

BACKGROUND

1. In October 2020, the Tribunal made an order under s 35(3) of the Administrative AppealsTribunal Act 1975 (‘AAT Act’) prohibiting the publication of the name of the Applicant in these proceedings. He will be called ‘JZGW’. The Applicant held a Class BC (Subclass 100) spouse visa until 7 December 2018, when it was cancelled under s 501(3A) of the Migration Act1958 (‘the Act’) on the basis that he failed the character test owing to having a substantial criminal record.

2. JZGW was born in 1976 and first arrived in Australia in 1997, aged 21, on a student visa. He has resided in Australia generally since that time, although he returned to Vietnam between 2009 and 2012. In 1999 JZGW met a woman who will be called DT. They married in 2008 and divorced in 2012. They have two children.

3. The Applicant was arrested in July 2013 for offending discussed further below. He was sentenced in the County Court of Victoria at the end of June 2015. He has been in custody or detention since July 2013. JZGW served the non-parole period of his sentence and became eligible for parole in January 2020. Being without a visa, he then entered immigration detention.

4. When his visa was cancelled, JZGW was invited to make representations as to whether, under s 501CA(4)(b)(ii) of the Act, there was ‘another reason’ to revoke the cancellation of his visa. The representations were made to an officer of the Department of Home Affairs (‘the Department’) who held a delegation from the Minister.

5. On 12 August 2020, the Minister’s delegate refused to revoke the cancellation decision.  The Applicant applied to the Tribunal to review that decision on 20 August 2020. The Tribunal, differently constituted, conducted a hearing in October 2020 and, on 4 November 2020, affirmed the decision under review.

6. On 29 October 2021, the Federal Court of Australia (Bromberg J) set the Tribunal decision aside and remitted the matter to the Tribunal for a fresh hearing.

   HEARING

7. The hearing was held on 4, 5 and 11 August 2022. The Applicant was represented by Ms Tanya Skvortsova of counsel, instructed by Ms Hannah Irvine of Clothier Anderson Lawyers. The Respondent was represented by Ms Laura Mills of counsel, instructed by Mr Matthew Daly of Mills Oakley Lawyers. The Applicant gave evidence and was cross-examined. Other witnesses called to give evidence were Mrs KM, a social worker and migration agent; Mr GW, a friend; Mr TQN, a friend; Mr NVT, a friend; and Mr Tim Watson-Munro, consultant psychologist. Some witnesses were allowed to give evidence by the Tribunal under s 33A of the AAT Act. The Tribunal was assisted by an interpreter in the Vietnamese language.

8. The Tribunal admitted into evidence the documents in the Annexe to these reasons.

9. The Tribunal received a Statement of Facts, Issues and Contentions from the Applicant (‘ASFIC’) and an equivalent statement from the Respondent (‘RSFIC’). The Tribunal had regard for these documents.

   QUESTIONS BEFORE THE TRIBUNAL

10. There are two questions for the Tribunal to address. The first is whether JZGW fails the character test. If the Tribunal is satisfied that he does not, then s 501CA(4)(b)(i) of the Act provides that the cancellation of the visa is set aside, and that is the end of the matter. However, if the Tribunal finds that JZGW fails the character test, the second question is whether the cancellation of his visa should be revoked for ‘another reason’: s 501CA(4)(b)(ii) of the Act.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

11. Section 501(7)(c) of the Act provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more. Section 501(3A)(a)(i) of the Act provides that the Minister must cancel a visa that has been granted to a person if the person has a ‘substantial criminal record’ and is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory: s 501(3A)(b) of the Act.

12. Before the Tribunal was a nationally coordinated criminal history check by the Australian Criminal Intelligence Commission dated 1 February 2019 (‘ACIC Report’, RB, p 34). The ACIC Report relevantly records that on 30 June 2015, JZGW was convicted of the offence of Traffic Large Commercial Quantity – Cannabis. Also before the Tribunal was the transcript of the Reasons for Sentence of the County Court of Victoria dated 30 June 2015, which refers to the Applicant being found guilty of one charge of trafficking in not less than a large commercial quantity of a drug of dependence, namely cannabis, between June 2007 and July 2008. He was sentenced to prison for eight years and six months, with a non-parole period of six years and six months (RB, p 42). It was not in dispute between the parties that the Applicant was serving a sentence of full-time imprisonment on the date his visa was cancelled.

    Finding on the character test

13. The Tribunal is satisfied based on this evidence that JZGW does not pass the character test and that the delegate of the Minister was required to cancel his visa by operation of law.

    IS THERE ANOTHER REASON TO REVOKE THE VISA CANCELLATION?

14. Section 501CA(4)(b)(ii) of the Act provides that the Minister (or, in this case, the Tribunal standing in his shoes) may revoke the original decision if satisfied that there is ‘another reason why the original decision should be revoked’.

    A new Direction since the mandatory cancellation

15. Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must comply with a relevant direction under s 499(2) of the Act.

16. When JZGW’s visa was cancelled, the delegate consulted Direction No. 79, which was the direction made under s 499 and then in force. On 8 March 2021, the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made a fresh direction under s 499, Direction No. 90. Direction No. 90 (‘the Direction’) commenced on 15 April 2021 and (at clause 3 of Part 1) revokes Direction No. 79 from that date. As mentioned, s 499(2A) of the Act requires that the Tribunal must comply with the Direction in considering this matter.

17. The Full Court of the Federal Court of Australia (Dowsett, Kenny and Mortimer JJ) in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48 (‘Jagroop’) considered the question about which Direction applied where a reviewable decision was (a) made when one Direction was in force; (b) an applicant then sought review by the Tribunal: (c) the Tribunal made its decision after a new Direction had commenced. In Jagroop, the Full Court was considering a request for a review of a decision of the Tribunal where the applicant submitted that a revoked Direction should still apply to him, because that was in place when he applied for review of the decision. That submission has not been made here, but given the length of time since JZGW’s visa was cancelled, now some four years, it is relevant that the Full Court upheld the view of the Tribunal Member in Jagroop, who decided that the Direction applying at the time the Tribunal makes its decision is the one to which the Tribunal should have regard. 

18. In upholding that view, the Full Court held, at [4]-[6]:

    4. The current version of the Direction is entitled “Direction No. 65”. That is the version the Tribunal applied in making its decision. The applicant’s contention is that the Tribunal should have applied the former version of the Direction, which is entitled “Direction No. 55”.  In reliance on Esber v Commonwealth [1992] HCA 20; 174 CLR 430, he contends he had a right to a decision by the Tribunal on review that applied Direction No. 55 as the Direction which was in force at the time he made his application to the Tribunal in February 2013.

    5. The focus of argument before this Court was on the characterisation of the Directions as either legislative or administrative in nature. In our opinion, the real issue is the application of s 7(2)(c) of the Acts Interpretation Act 1901 (Cth) and whether the applicant had acquired or accrued a right under Direction No. 55, upon which the terms of s 7(2)(c) could operate.

    6. For the reasons set out below, we do not consider the applicant accrued or acquired any right under Direction No. 55, and therefore we would dismiss the application.

19. The Court went on to state that Mr Jagroop had failed to identify any ‘rights’ that he had lost with the revocation of the old Direction and the replacement of it with a new one. Therefore, the provision of s 7(2)(c) of the Acts Interpretation Act 1901, which is designed to prevent a person from losing a right he or she had accrued or acquired under the law when that law is amended or repealed, is not affected by the making of a new Direction under section 499 of the Act and the revoking of the old Direction. This is because, in essence, the Direction provides guidance for decision-makers, including mandatory considerations, but the ‘right’ of a person to seek review is found in s 500(1)(ba) of the Act, not within the framework of a Direction from time to time in force. It is always open to an applicant to make a submission that a new Direction may be less favourable to them in their particular circumstances from the one that was in force when their visa was refused or cancelled, or a delegate declined to revoke a mandatory cancellation. In such a case it is open to the Tribunal to consider such a submission on its merits (provided the submission is not directly at odds with the Direction in force), because the Tribunal is not confined only to the contents of the Direction in considering whether there is ‘another reason’ to revoke the mandatory cancellation.

20. The Tribunal therefore proceeds on the established principles that the Tribunal:

    (a)Is not constrained in deciding whether there is ‘another reason’ to revoke the visa cancellation, to consider only the material before the original decision-maker and may consider fresh material; and

    (b)Should apply the law and policy in place at the time it makes its decision. The Tribunal, therefore, considered and will refer to Direction No. 90 in these reasons.

21. The Tribunal must have regard to the contents of the Direction in considering whether there is “another reason” to revoke the mandatory cancellation. The Direction requires that some considerations must be taken into account where they are relevant. However, the Direction does not confine the Tribunal’s task; it must look at any other relevant factors in the circumstances of the case.

22. The Tribunal must consider the primary and other considerations in the Direction as relevant to the Applicant’s personal circumstances and his offending history.

    PRIMARY CONSIDERATIONS

    Primary consideration: Protection of the Australian community

23. Paragraph 8.1(2) of the Direction requires the Tribunal to consider the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The nature and seriousness of the conduct

24. The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence.  

25. The sentencing remarks set out the circumstances of the offending. They relevantly stated:

    The circumstances of your offending may be briefly summarised. [Redacted], a drug dealer living in Brisbane, operated a drug distribution business there. Over time, he entered into an agreement with you to obtain cannabis from you. He would send couriers by plane to Melbourne carrying between $150,000 and $200,000 in cash.  They would hire cars at the airport, drive to premises operated by you in [redacted] and [redacted]. You or your wife would open the roller door to the garage, they would enter, give their keys to you, wait in the house and have coffee. During this time, the cannabis on one pound sealed bags would be placed in the boot of the hire car. The couriers would be given their car keys back and would drive back to Brisbane.

    There was some divergence…concerning the precise amount of cannabis trafficked by you during the charging period.  The prosecution relied on calculations put to the jury to the effect that…there were 21 occasions during the charge period on which 50 kilograms or more was trafficked by you. This amounts to 447 kilograms of cannabis, almost double the threshold amount to make out the offence.

    …

    It is clear…that, by its verdict, the jury was satisfied that over the charging period, you were involved in the trafficking of not less than 250 kilograms of cannabis and I sentence you on that basis.

    There was also some disagreement between the parties concerning your precise role in the trafficking operation. While it was not in dispute that you were wholesaling cannabis, the prosecution case is that you were the lynchpin of the trafficking operation, that you played a management role in that you made the arrangements with [redacted], discussed the trading with him in the covert recording, met the couriers in Melbourne on many occasions at both locations and that there was no evidence that you had to defer to anyone else in running the operation to supply the cannabis to the couriers sent to Melbourne by [redacted].

    When you were out of the country during the charge period, you instructed your then wife [DT] to receive the couriers, accept the case they provided and arrange for the cannabis to be loaded into their hire car.

    By contrast, your counsel submitted that you were financially beholden to DT by virtue of your illegal status in Australia and that you were her puppet in the wholesaling operation.  I consider that your role was that of wholesaler but I find that you dealt personally with [redacted] and the couriers and took no direction in that regard from anyone.

26. The Judge then summarised the personal circumstances of the Applicant. He was, at the time of sentence, 39 years of age. He was born and raised in Vietnam. Her Honour said she was informed that JZGW had an unhappy childhood with a domineering father. He completed 12 years of schooling and then commenced an economics degree at a university in Saigon before coming to Australia to study English. The Applicant’s student visa expired, but he stayed on, working in the black market in restaurants and fruit picking.

27. In 2008, he married DT. Her Honour recounted that in early 2009 JZGW took their younger daughter to Vietnam. DT was arrested in April 2009. She pleaded guilty to one count of trafficking in a commercial quantity of cannabis and was sentenced to five years’ imprisonment, with a non-parole period of two years and six months. At the end of 2011, DT was released from prison on parole.

28. In 2012, JZGW returned to Australia. He was arrested in July 2013 while attempting to depart the country to return to Vietnam. Her Honour noted that JZGW had no prior criminal history. 

29. Paragraph 8.1.1(1) of the Direction states that violent and/or sexual crimes and crimes of a violent nature against women and children are to be regarded as very serious. There is no evidence that the Applicant has committed any offences in these categories.

30. Paragraph 8.1.1(1)(b)(ii) requires a decision-maker to consider crimes against vulnerable members of the community. The Tribunal considers this consideration is engaged because the trafficking of a drug of dependence is intended to exploit persons who are addicted to or users of illicit drugs. They are, axiomatically, vulnerable because of that addiction or propensity.

31. Paragraph 8.1.1(1)(c) requires the Tribunal to consider the sentence imposed for a crime. In this case, the offence carried a maximum sentence of life imprisonment. The sentence imposed by the Court was a significant custodial sentence with a similarly significant non-parole period.  In addition, the Judge declared that JZGW was a ‘serious drug offender’ under the provisions of s 89DI of the Sentencing Act 1999 (Vic).

32. The Tribunal must also consider the frequency of offending and the cumulative effect of repeat offending. JZGW has been convicted of one offence, but the charging period spanned a year, so the elements of the single offence take into account repeated criminal activity over that 12-month period. The Judge noted that there were 21 occasions when the Applicant trafficked more than 50 kilograms of cannabis (RB, p 36). There is no other prior or subsequent offending recorded against the Applicant.

33. Both parties submitted that the Applicant’s offending is very serious. The Tribunal agrees and makes that finding.

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

34. The Direction states that decision-makers (including the Tribunal) should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Direction states that some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.

35. JZGW’s offending was related to a relatively sophisticated drug trafficking enterprise. The Court found that he was a wholesaler and that he did not take direction in relation to the activities he undertook to provide large quantities of drugs to the dealer in Queensland.

36. The Tribunal considers that the nature of harm to individuals or to the Australian community should the Applicant engage in further criminal or serious conduct is that, if he offends in this nature again, it will facilitate the illicit drug trade on the streets. The illicit drug trade itself precipitates other offending such as robbery and burglary, so that drug-users can fund their habits. While some might consider cannabis at the lower end of the range of illicit drugs, it nonetheless feeds into an illicit black-market economy and paves the way for users to move on to harder and even more destructive drugs. That is why the Parliaments of the Australian jurisdictions have classified the trafficking of large commercial quantities of cannabis as serious offences warranting heavy penalties.

1. The sentencing Judge noted (RB, p 41) that JZGW had expressed no remorse for his offending. She, however, accepted submissions made by the Applicant’s counsel that he suffers from depression which Her Honour considered warrants a ‘modest moderation’ of the principle of specific deterrence. She noted this would make prison more onerous for him than for someone who did not suffer from this condition.

2. Her Honour accepted that the Applicant had lost access to a financial contribution of some $300,000 made by his family towards the purchase of a house in Melbourne (one of the sites of the trafficking operation) which DT forfeited as part of the pecuniary order made against the Applicant’s then wife when she was sentenced.

3. The Respondent submitted that the Applicant’s student visa expired six months after his first arrival in Australia. He thereby became an unlawful non-citizen and remained so for some 11 years until shortly before he departed in April 2008. The major part of the offending conduct occurred while JZGW was an unlawful non-citizen.

4. In his oral evidence, JZGW agreed that he first arrived in Australia in May 1997. He said he grew up in a household with his parents, younger sister, and grandparents. He told the Tribunal his father was a ‘very difficult man’ who always wanted people to obey him. He said he was motivated to come to Australia to have a better life and look after his mother and sister. He first studied English in Australia.

5. JZGW agreed that his student visa expired in November 1997. He then worked, without a visa, in a restaurant as a kitchenhand and waiter, and undertaking seasonal work as a fruit-picker on farms in country Victoria.

6. JZGW said he met DT in March 1999 and commenced a romantic relationship several months thereafter. He said the relationship was ‘on and off’, and there was a period where they broke up for a substantial period, and in 2003 DT married someone else. DT remained married to this other man until they divorced in 2007.

7. JZGW said that in 2002 he was introduced through a friend to a ‘service’ to help him regularise his migration status and obtain a visa. He said he borrowed $50,000 from DT and gave this money to the ‘service’, which he said was a finance service, not a migration agent.

8. JZGW said that DT bought a house in an inner Melbourne suburb in 2000, and he lived with her there before he went to work on a farm. Their first child, FC, was born in 2005. The Applicant said he worked and paid back most of the money he had borrowed from DT, which he had given to the financial service.

9. JZGW said DT was unhappy about the money he was bringing into the house. She, at that time, was not working. He said he was expected to share care of FC and that what he earned was only enough to pay the rent but not enough to also buy groceries and other household needs.

10. The Applicant was taken to the sentencing remarks in the RB and said he accepted they outlined the circumstances of his offending. He said he had a translator at Court. JZGW said he became involved in trafficking drugs because of money he needed to pay back to DT and because of the “pressure of me living as an illegal resident”. He said he was not trying to shift blame to DT and that the pressure he was under “led to my stupid decision.”

11. He said DT suggested he become involved in the trafficking, but “I don’t blame her; it was me who decided”. He agreed that he knew the drugs were illegal. He said that both he and DT got themselves into debt gambling at the casino. When asked whether threats were made to him to get involved in the illegal operation, JZGW responded:

    Yes, by DT. She said it would take only one phone call from her and I would be deported to Vietnam. I was frightened. I did not feel I had much power because I was an illegal resident, constantly evading authorities.

12. JZGW said he and DT married at the beginning of 2008, and their second child, also a girl, NC, was born in February 2008. He said at this time, he was happy; DT was not working, and they had a good home life. He noted that he was particularly happy because NC took his surname. (The older daughter’s surname on her birth certificate is that of DT’s first husband. Both the Applicant and DT had made earlier statements that the first husband was the father of FC, but later admitted that JZGW was her biological father, and the Federal Circuit Court made a declaration to that effect.).

13. In March 2008, JZGW was granted a bridging visa. He said he went to an immigration service, and they arranged an appointment at the Department’s Melbourne offices for him to ‘confess himself’. He returned to Vietnam and applied for a provisional partner visa which was granted in October 2008.

14. JZGW said he had mixed feelings because he was happy not to be an illegal resident but was worried that he might not be allowed to re-enter Australia once he left. He said he departed Australia less than a month after being granted the bridging visa, returning to Vietnam with FC.

15. In Vietnam, he and FC stayed with his parents (her paternal grandparents) and “tried to lead a normal life and avoid situations where my father would get angry.”

16. JZGW agreed that he returned to Australia as the holder of a provisional partner visa with FC in November 2008 for about four weeks. NC was during this period in the care of her mother, DT. DT and NC came to Vietnam, but all the family then returned to Australia in March 2009. DT was arrested in April 2009. That month, JZGW took NC back to Vietnam. FC stayed in Australia. While DT was in prison, JZGW said that FC was in foster care.

17. At the end of 2011, DT was released on parole. JZGW came back to Australia early in 2012 with NC. He said he understood there was a prospect he would be arrested but felt he could not send NC back by herself. Indeed, there is a letter before the Tribunal written in Vietnamese from DT to the Applicant, with a certified translation, in which DT relevantly wrote (RB, pp 472,473):

    I know I didn’t listen to you at the beginning. I own up to all of it. No worries. I intend to plead guilty after going to court 6 times, I’m in great despair. Six times…Think very carefully, Honey.

    I miss you.

    [Signed]

    DON’T COME BACK HERE

    BECAUSE THERE IS A POSSIBILITY THAT YOU WOULD BE ARRESTED TOO

    THE POLICE HAS AMPLE EVIDENCE

18. In May 2012, JZGW went back to Vietnam, by then as the holder of a permanent partner visa. He said he took NC with him, but left FC with DT. JZGW went back and forth between Australia and Vietnam between August 2012 and March 2013. He was then arrested in Australia in July 2013, preparing to return to Vietnam.

19. JZGW said he had been in dispute about FC’s legal name. He said that DT told him that if he gave custody of NC to her, she would agree to change FC’s surname from that of her previous husband to that of the Applicant.

20. JZGW told the Tribunal about various jobs he had had in prison and that he had undertaken a training course for a white card and an electricity safety course to certify insulation. He also worked in the laundry. In 2014 the Applicant said he had been the victim of an assault by a fellow inmate and a second assault by another inmate. In both cases, he said the police were involved, and he was given the option to make a statement. However, if he made a statement, he would have to go into protective custody, so he decided to let matters be.

21. JZGW said he initiated Family Court proceedings in respect of custody of his children. He said DT applied for separation in 2009, but they got back together. He said they finally decided to go their separate ways in February 2012.

22. The Applicant said that if he is allowed to stay in Australia, he intends to work in a milk bar and live above the store. He said he needed to attend to some health issues, including an operation on a testicle which is retaining fluid, for which he was on a waiting list.

23. When asked about his offending, JZGW said:

    I accept full responsibility for my wrongdoing. It is all my own doing. I do not blame it on other people apart from myself. I have lost my wife and have lost my family. I caused harm to numerous other people. I saw harm [of drug use] on the people I met in prison. All due to greed and stupidity, I made the wrong decision.

24. In her sentencing remarks, the Judge accepted that JZGW had no prior convictions and good prospects of rehabilitation.

25. In respect of the risk of JZGW re-offending, before the Tribunal was a report by Mr Tim Watson-Munro, psychologist, dated 21 June 2022. Mr Watson-Munro noted that he had examined the Applicant on previous occasions in February and June 2019 and provided reports at that time.

26. Mr Watson-Munro recorded that JZGW had made progress in terms of his general insight and rehabilitation. He noted that the Applicant had come to terms with the breakdown of his marriage to DT but was still saddened by the lack of contact with his two children. Mr Watson-Munro said it was significant that the Applicant has also reflected on his past criminality and ‘expressed appropriate remorse for his behaviour and attendant to this demonstrated better insight to his wrongdoing, as reflected in his understanding and acknowledgement of the impact of illicit drugs upon Australian society.’

27. Mr Watson-Munro recorded that JZGW had given thought to his potential future life in Australia, including work available to him at a milk bar and accommodation in rooms above those premises. Mr Watson-Munro reported that the Applicant was not taking psychotropic medication and his mood had improved since he examined JZGW in 2019, reflecting a more philosophical approach and some optimism towards the future. Mr Watson-Munro wrote:

    I noted in my initial report in August 2019, based on psychiatric testing that he was experiencing a moderate and recurring Depressive Disorder according to DSM-5 criteria. At the time of my most recent assessment, [JZGW] denied any symptoms of major depression. He is nonetheless understandably anxious regarding the future.

28. Mr Watson-Munro recorded that JZGW said he no longer had contact with any of his former criminal associates and was keen to move forward and establish healthy and prosocial relationships with law-abiding individuals in Australian society. Mr Watson-Munro noted that JZGW himself was not a substance user. 

29. He wrote:

    As a further relevant consideration, it is clear that his psychological condition will be significantly impacted should he be required to leave Australia. It is unlikely that he will receive the type of treatment which I am advocating in Vietnam and no doubt, the permanent removal of any possibility of seeing his children in Australia will have a substantial impact upon his morale. These factors too are reinforcing his motivation to lead a law abiding life.

    Taking all factors into account, I believe the risk of [JZGW] reoffending can now be considered to be low.

30. Mr Watson-Munro also gave evidence by video link to the Tribunal. He said that JZGW “accepts his culpability and wrongdoing. Way back years ago, there was a degree of obfuscation regarding his wife. Now he accepts he made the decisions [to offend].”

31. When asked about JZGW’s level of remorse, Mr Watson-Munro said: “Remorse is difficult to gauge…I look for insight and some empathy. As best I can tell, his remorse is sincere.”

32. Mr Watson-Munro was asked about the current state of JZGW’s mental health. He responded: “Anxious. Depressed. Uncertainty about his future in Australia. He was assaulted in custody. He has no major psychological or psychiatric disturbances. There is no substance misuse. He is motivated.”

33. When asked if it was fair to say that JZGW’s anxiety was situational, Mr Watson-Munro replied: “That is a fair description, but it aggravates an earlier platform of anxiety and depression; aggravated by exposure to the justice system and detention.”

34. When asked how this anxiety condition would be affected if the Applicant was returned to Vietnam, Mr Watson-Munro responded: “It will deteriorate. I am not an expert on psychological services in Vietnam.”

35. Under cross-examination, Mr Watson-Munro was asked about his conclusions regarding the Applicant’s contact with his father. He conceded he did not know that JZGW lived with his parents between 2009 and 2012 and agreed that would affect his opinion about the Applicant’s dynamic with his father.

36. Mr Watson-Munro said he was unaware of any history of gambling by the Applicant and unaware that JZGW said he owed money to DT, but he was aware of general financial pressures.

37. Mr Watson-Munro said that JZGW’s depression would lift if he were deported to Vietnam, but his anxiety would escalate because he would be separated from his children. Ms Mills asked Mr Watson-Munro whether it remained his opinion that the Applicant’s mental state would be exacerbated if he was sent back to Vietnam. He responded:

    I do. In Australia he would be able to access treatment. I can’t comment on Vietnam, but anecdotally I hear [mental health services] are not at the same level as in Australia.

    Evidence of other witnesses

38. The Tribunal heard evidence from Mrs KM. She is a social worker and migration agent and practised as a lawyer in Vietnam. Mrs KM provided a statement (Exhibit A6). She said she first met JZGW in 2012. She was involved in welfare for new arrivals from Vietnam and said the Applicant undertook a parenting course, sometimes in the company of NC. She said that JZGW had a good relationship with both his children. Mrs KM said she was involved with Jesuit Social Services and had the capacity to make referrals and assist JZGW if he is released into the community.

39. Mr GW gave evidence in person.  He said he is a former solicitor who met JZGW when they were both incarcerated. He said he helped the Applicant by writing to DT’s lawyer and thought he might have helped with an affidavit for the Family Court. This was in the context of JZGW’s dispute with DT about custody of the children. Mr GW said that his employer was able to offer the Applicant a cleaning job if he stayed in Australia (an offer corroborated by a letter from the employer at SRB, p 39).

40. Mr GW remarked on his assessment of JZGW:

    We had frequent contact. He did his gaol hard. He was a very isolated person. The great loss of his family was hurting him. The majority of guys are planning their next offence or addicted to drugs. A small minority like the Applicant are deeply ashamed. They don’t want to ever go back there.

41. Mr TQN gave evidence. He provided a statement dated 22 June 2022 (Exhibit A10). He said he had known JZGW since he had been in Australia. Mr TQN said he is the lessor of a milk bar and had offered the Applicant employment if he was permitted to stay in Australia. He said the hours would be full-time, 6.30 am to 8.00 pm, seven days a week. Mr TQN then said his wife, who currently helps him, is unwell, and he would expect JZGW to work for five days a week. When it was explained that JZGW would need time off for medical and potentially psychologist appointments, Mr TQN said that something could be worked out.

42. Mr TQN told the Tribunal that above the milk bar is a three-bedroom flat, which he was prepared to offer JZGW rent-free.

43. Mr NVT gave evidence by video. He provided a statement dated 22 September 2020. Mr NVT said he operated a café in Port Melbourne and employed around 20 people. He said he was currently short staffed and would guarantee JZGW work if he stayed in Australia, as a kitchen hand or waiter. Mr NVT said he would be prepared to train the Applicant for front of house duties or bar work. He said the work could be full-time or on a casual basis.

44. The Tribunal also observes that another friend of the Applicant made an offer of a building job and temporary accommodation at that friend’s home if he is allowed to stay in Australia (SRB, p 42).

    Consideration

45. The Tribunal accepts that either of the employment offers, and the offer from Mr TQN of accommodation, would be protective factors to discourage JZGW from returning to criminal activity. It was unclear whether the accommodation above would still be on offer if JZGW did not take up the milk bar job.

46. The Applicant’s counsel accepted that the offending was ‘unquestionably serious’ and noted that JZGW himself accepted that in evidence. Ms Skvortsova submitted that the Tribunal should take into account that the drug trafficked was cannabis, not methamphetamine. Further, the Applicant played a role in facilitating the operation but was not himself involved in the handling of the drugs. Given the Court’s factual finding and the statutory classification of the drug, and the amount found to be trafficked, parsing about the drug itself is an arid argument.

47. The Tribunal also does not accept, on the facts set out by Her Honour, the sentencing Judge, that the possibility that JZGW did not himself physically handle the drugs, is material. The Judge was satisfied JZGW was used to dealing personally with the interstate drug distributor (as revealed by tapped phone calls) and ‘did not defer to anyone else’ (RB, p 40). The Applicant continued this supervisory role of the trafficking operation during his absences in Vietnam when DT was assisting in their criminal enterprise.

48. JZGW’s counsel submitted that the Applicant has exhibited genuine remorse and that his insight into the gravity of his offending has ‘developed over time’. She said the debt led to gambling, which led to further debt, which then snowballed into offending. Ms Skvortsova submitted that the fact of JZGW being in Australia unlawfully was a factor between the Applicant and DT but that JZGW himself did not say it determined his criminal conduct.

49. The Tribunal accepts that prison reports show JZGW has been of good conduct whilst incarcerated and has availed himself of the opportunity to complete courses and improve his employment skills. He did an electrical course (RB, p 393), a construction industry access card course (RB, p 394), a course in operating an elevated work platform (RB, p 396), certificates in hospitality, cleaning operations and traffic management (RB, pp 468-469). There was no evidence of the Applicant taking drugs, and urinalysis assays in prison revealed no cause for concern (RB, p 469). Prison reports before the Tribunal variously describe JZGW as ‘compliant’, of ‘good behaviour’, ‘polite’, ‘incident-free’ and a ‘good and reliable worker’ (e.g. RB, pp 402 and 424).

50. However, even if the Tribunal accepts Mr Watson-Munro’s assessment that JZGW’s risk of re-offending is ‘now low’, there are some worrying factors in the circumstances of the offending. The Court found that the Applicant did not defer to anyone else in the 21 separate drug consignments he organised to send interstate. His then wife was also involved in the criminal enterprise. He continued to direct her in relation to the trafficking activity while he was in Vietnam. It was a serious trafficking endeavour operating for more than a year. JZGW claims that part of the motivation was gambling debts and his own concerns about his illegal migration status. He submits that his wife threatened to go to the Department, apparently as a factor in his offending. Then he several times said that he does not blame her for his offending.

51. During cross-examination when JZGW was talking about his gambling habits, the following exchange took place:

    Ms Mills:  You had a problem with gambling at this time?

    JZGW:  Yes. I went regularly and had a problem.

    Ms Mills:  Did you ever think of seeking help?

    JZGW:  No.

    Ms Mills:  Are you concerned you might start gambling again?

    JZGW:  Never. It is because of my gambling that I face consequences today.

    Senior Member:         But it isn’t because of gambling that we are here today.

    JZGW:The consequences of gambling was debt. That led me to offences and that’s why I am here today. I owed people money – that led me to owe others; that led me. If I was to gamble, the same would happen again – never again.

    Ms Mills:Is it fair to say gambling was a major factor which led you engage in drug trafficking?

    JZGW:Yes. One of the reasons that led me to commit criminal offences.

    Ms Mills: Why is there no mention of gambling in your statements?

    JZGW:I already explained the reason I got into financial difficulties was partly through gambling. I apologise for that omission.

    Ms Mills:There was no mention of your debt to your wife in your statements.

    JZGW:I think I did say that.

    Ms Mills:You talk of the financial pressure placed on you by DT to provide for her and the children.

    JZGW:If so, I would like to apologise. The pressure from her was focussed on her for taking care and having money to spend. Not blaming her.  Accept my responsibility. If it was not for the gambling, I’d have only owed her $30,000. The fact we were losing money was why we stopped gambling in 2003. I apologise for details missing from my statements. I am not trying to refute my statements but did not make them scientific and fully informative.

1. The Tribunal is concerned that the Applicant seemed to be selecting from a  smorgasbord to provide reasons for his offending to the hearing. At times he said it was because of anxiety about his migration status, and threats he says DT made to report him to the Department. Then he retreated from that to a certain extent and said that was not the reason. At other times he said it was because of debts he says he owed DT and she, in turn, owed her mother. He did not mention this debt in his written statements. Then he suggested that the reason was that he was not earning enough, and that DT was annoyed that there was insufficient household income. Then, as set out above, he suggested that gambling debts partly drove the offending. Mr Watson-Munro’s evidence was that the issue of gambling had not been raised by the Applicant on the occasions he had examined JZGW.

2. Mr GW, who befriended JZGW when they were both in prison, wrote in his statement (Exhibit A9) that he had spoken often with the Applicant about his offending, and that he had shown ‘genuine remorse’ and was ‘disgusted with himself’. Mr Watson-Munro considered that he was remorseful.

3. The Tribunal accepts that JZGW and DT have had a tempestuous relationship, and that it, in the end, broke down completely with significant acrimony regarding access to the children. However, the tone of DT’s letter to the Applicant, reproduced above, telling him she had decided to plead guilty and warning him that she feared he might be arrested if he returned to Australia, is affectionate and does not have the flavour of her being a manipulatrix. 

4. The Tribunal accepts that JZGW might now be remorseful, but the shifting sands and inconsistency as to the reasons for his serious offending, including in his hearing some 14 years after the offending took place, reveal a lack of insight. If the Applicant still cannot distil what motivated him to offend, it may expose a vulnerability that would contribute to him re-offending.

5. The Tribunal considers that the risk of re-offending, given the very serious nature and the duration of the offence, is an unacceptable risk. The Tribunal finds that this primary consideration weighs relatively heavily against revoking the visa cancellation.

   Primary consideration: Family violence committed by the non-citizen

6. The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence. The Respondent submitted that this consideration is not relevant. The Tribunal agrees with that submission; none of JZGW’s offending conduct is in this category.

7. This primary consideration therefore weighs neutrally in the Tribunal’s assessment.

   Primary consideration: Best interests of minor children in Australia affected by the decision

8. The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.

9. The Tribunal must take into account various factors set out in paragraph 8.3(4) of the Direction, where relevant. These include whether the Applicant has a parental relationship with the children, the extent to which he is likely to play a positive role, the impact of prior conduct on the child or children; the likely effect separation would have on the children; and whether there is another person or persons who fulfil a parental role. In addition, any known views of the child or children should be taken into account.

10. The Applicant is the father of two minor children who are Australian citizens and reside in Australia:  FC, who is now aged 17, and NC, who is aged 14. I do not consider that the best interests of FC and NC differ so markedly that different determinations should be made regarding each, although JZGW has had slightly more associations with his younger daughter because of the prolonged period they spent together in Vietnam, from 2009 to 2012.

11. Before the Tribunal was a bundle of letters between the Applicant and both FC and NC. It is clear to me that, despite there being significant friction and custody disputes between DT and JZGW, he has endeavoured to maintain a level of contact with both of his daughters. The Direction requires the Tribunal to have regard to any Court orders which affect a non-citizen’s access to relevant minor children. JZGW confirmed in his evidence that an Intervention Order (‘IVO’) is still in place that prevents him contacting his daughters by telephone, nor can he see them. The Tribunal accepts the IVO would be capable of amendment if JZGW was released into the community in Australia. Any such Orders will also not apply to FC when she attains her majority in three years’ time.

12. DT plays a parental role in the life of both FC and NC and has, on the Applicant’s own evidence, for the past nine years. The Tribunal does not conclude he would not be a positive influence on the children if he was with them. There is no evidence that he has been anything other than a loving father, even if the circumstances of his offending and dispute with DT have led to his physical absence from their lives for an extended period.

13. The Tribunal notes that the evidence is that DT is an Australian citizen, and her parents continue to reside in Vietnam. DT has travelled back to Vietnam in the past with her daughters, and there is no evidence before me that she would be precluded from doing that in the future. In July 2017, DT said in a statement to the Federal Circuit Court that, when her finances allowed, she wanted to be able to travel to Vietnam with her children so that ‘I can see my family and so my children can spend time with extended maternal and paternal family.’

14. The Applicant’s counsel submitted that DT is in financial hardship following the confiscation of her house because of her conviction. It was also submitted that correspondence from the Department of Human Services indicated that DT’s estimated income from January 2020 to February 2021 was around $10,000. It was noted that JZGW has been unable to make child support payments to DT during his time in custody.  It would seem to the Tribunal that, notwithstanding the break-down of her and JZGW’s relationship, DT wants their daughters to have contact with their paternal grandparents in Vietnam.

15. Under cross-examination, JZGW agreed that he has monthly contact with his daughters by letter. He agreed that they were happy and doing well at school, were well cared for by DT and not missing out financially. He noted they were learning Vietnamese. He agreed that DT had been their primary care giver for the past nine years.

16. JZGW said he was aware that FC had been back to Vietnam once since he has been incarcerated, in 2014 or 2015. He said FC and NC speak to his parents in Vietnam about once a month.

17. The Tribunal notes the evidence of JZGW that DT’s parents have significant wealth, so it is possible that DT would be able to call on them for financial assistance. The Tribunal has no further information about that but does note generous financial assistance in the past from her family, including to purchase real estate in Australia. It is also relevant that, as an Australian citizen, DT would be entitled to apply for social security benefits linked to her income, to support her and the children while they are minors.

18. Given the obvious efforts that JZGW has undertaken to establish and maintain fatherly contact with FC and NC, the Tribunal finds that their best interests would support the revocation of the cancellation of his visa. This primary consideration weighs, therefore, in favour of that, relatively strongly but with a slight tempering of the weight given the Applicant’s long physical absence from their lives (since 2013). 

    Primary consideration: Expectations of the Australian Community

19. Paragraphs 8.4(1) and (2) of the Direction state:

    (1)  The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

    (2)  In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.

    …

20. The expectation of the Australian community is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. An old version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held 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. The expectations articulated in the Direction are ‘deemed’; they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may seek to derive by some other evaluative process. 

21. Direction No. 90 was issued after FYBR and imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.

22. JZGW committed a very serious offence with a charging period of around a year. It involved the trafficking of a very large commercial quantity of an illicit drug, to enable it to be sold into the retail market to users and addicts. The Court imposed a significant prison sentence and noted the Applicant did not exhibit any remorse. There is evidence and testimony that he now shows remorse and a better appreciation of the destructive effects of illicit drugs in the community.

23. The Tribunal considers that this sort of offending, relatively sophisticated as it was, undermines the operation of civil society because it encourages an illicit trade in drugs of dependence and the criminal offending that goes hand in glove with that. The Applicant undertook the bulk of this offending while he was in Australia illegally and continued to direct criminal activities while he was abroad in his home country.

24. The Tribunal finds that this primary consideration weighs heavily against revoking the mandatory cancellation of the visa.

    OTHER CONSIDERATIONS

    Other consideration: International non-refoulement obligations

25. The Direction states that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. It goes on to say that Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (i.e., the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘the CAT’), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (‘the ICCPR’). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, the Direction exhorts decision-makers to follow the tests enunciated in the Act.

26. There was no suggestion by the Applicant that there are any non-refoulement obligations that are engaged, and this consideration was not mentioned in the ASFIC. 

27. The Tribunal considers that in the absence of submissions to the contrary, this consideration is not relevant and weighs neutrally.

    Other consideration: Extent of impediments if removed

28. The Direction requires decision-makers to consider the extent of impediments a non-citizen may face if removed from Australia to his home country in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the country. The Tribunal must consider the Applicant’s age and health; any substantial language or cultural barriers; and social, medical, and/or economic support available to him if repatriated.

29. Although the Applicant first came to Australia in 1997 and has spent significant periods of his life here (putting aside the period he has been in custody and immigration detention), as has been set out above, he has also returned to Vietnam on many occasions and resided there from 2009 to 2012. There is no evidence before me of any significant language or cultural barriers: he speaks Vietnamese and was educated there and attended university there. His parents and other family live there, and he has travelled frequently back since coming to Australia, and resuming living there for an extended period. 

30. JZGW said one of the houses he and DT purchased in Melbourne was bought for $600,000 and told the Tribunal his parents contributed half of the purchase price. Ms Mills asked the Applicant whether his father was a real estate agent and investor, which he confirmed.  When pressed on whether his father was a wealthy man, JZGW responded, “At that time, yes”. In his statement (SRB, p 5) JZGW states that his father ‘was a very successful real estate agent and investor in Ho Chi Minh City’ and that his father was interested in becoming involved in the Australian property market. On this evidence, JZGW’s parents appear to be comfortably off in a financial sense and have been willing to support him in the past.

31. In his oral evidence, JZGW confirmed he maintained contact with his sister in Vietnam. He said that his parents had looked after FC and NC on occasions when they visited Vietnam. When asked directly by the Tribunal whether he had any concerns about incidences of violence between his parents and FC and NC, the Applicant said that he did not.

32. He agreed that in the three years he was in Vietnam with NC, she went to school. He told the Tribunal he did not work during this time; he lived with his parents, and they financially supported him. He said on each occasion when he returned to Vietnam, while he paid the airfares, his father supported him financially regarding living expenses there.

33. JZGW said that when he was in Vietnam, he regularly visited DT’s parents (who lived about 100 kilometres from the Applicant’s parents) maintained a good relationship with them and that they saw their granddaughters when FC and NC were in Vietnam.

34. Ms Mills asked JZGW whether he currently receives any payments from family members.  He said he receives payments from his father ‘in a limited way’. When he was asked whether he thought his father would continue to provide support if he is returned to Vietnam, JZGW said:

    If forced to go back, I would seek financial support from him. He is getting old. I would have a place to live and enough to eat. I would find it difficult to get work in Vietnam.

35. Ms Mills noted that, in one of his statements, JZGW said his views on his father had changed. He responded:

    Yes. I’m now 40…my father is quite old. In life, no one is perfect. I wish to have a close relationship with my father. I’ve not been a perfect person, either. We need to have something in common.

36. The Applicant suggested that he has had an historically difficult relationship with his father.  That is plausible. But what is also in evidence is that he and NC stayed with his father in the family home from 2009 to 2012, with his parents meeting all their expenses. He said he often drove his father to and from work at this time. He said that his father has provided some limited financial support, and continues to do so as at the date of the hearing. This does not give the impression of a fractured father-son relationship.

37. The Applicant claims that there would be an adverse psychological impact on him if he is removed from Australia and not allowed to return. That is supported by the conclusions of Mr Watson-Munro in his report, referred to earlier in these reasons. However, in his oral evidence, when asked about this, Mr Watson-Munro admitted he did not have first-hand knowledge of mental health services in Vietnam. It would appear, from his evidence, that he based this conclusion in his report on anecdotal knowledge that psychiatric services are not at the same level as in Australia. That may be so, but the Tribunal places little weight on this as a secure conclusion about any potential exacerbation in the Applicant’s mental state if he is repatriated. That is not to say that JZGW would not be deeply upset about the geographical separation from his two daughters.

38. The Tribunal has consulted the DFAT Country Information Report – Vietnam, dated 11 January 2022 (Exhibit R3). It relevantly states, regarding mental health services in Vietnam:

    2.16 Mental healthcare is available at different levels including at national, provincial and commune hospitals and clinics. About half of the provinces have a mental health facility at the main hospital. There are three national mental health hospitals in Hanoi and HCMC. Medication for mental health conditions is provided at provincial, national and some district hospitals. Hospitals provide inpatient and outpatient services and, once a patient becomes stable, they may be referred to outpatient services at the commune level.

    …

    2.18 The quality of mental health treatment varies from place to place. It is likely to be better at main hospitals than district-level hospitals, for example. In-country sources told DFAT that treatment is often inadequate, with a large ratio of patients to mental health professionals, and that most mental health conditions, especially depression and anxiety, will go untreated. Treatment relies on medication rather than psychotherapy, which is often unavailable.

    2.19 Cost may be a barrier to mental healthcare, especially for the very poor or those with complex needs. Basic treatment and basic medications are covered by social health insurance. In-country experts told DFAT the out-of-pocket cost for medication is low and affordable to most people. Distance can also be a significant barrier to treatment. Mental health treatment is supposed be available at the district level, but DFAT understands this is not always the case in practice.

39. The Tribunal accepts that JZGW would be deeply disappointed if his visa is not restored, mainly because of the effect it would have on re-establishing his relationship with his two children. The Tribunal does not consider that Mr Watson-Munro’s conclusions about the quality of psychological services available to the Applicant in Vietnam is a relevant consideration. The Direction requires the Tribunal to consider the Applicant’s ability to establish himself in the context of what is generally available to other citizens of Vietnam. Account must be taken of what social, medical, and economic support is available to him in Vietnam. It would appear, on the evidence of past and current financial support from his parents, that JZGW would be significantly better off than many of his fellow citizens because he comes from a family with economic means. There was also no specific evidence before the Tribunal that he could not receive the medical treatment necessary for his testicular condition. The Tribunal accepts that the range of medical care available to the Applicant in Vietnam might not compare favourably with what is available in Australia, but that is not the measure this part of the Direction requires me to apply.

1. If the Tribunal was satisfied that there was some special feature in JZGW’s physical or mental health that would amount to an extra impediment, peculiar to him, then that might be relevant. But the evidence is that JZGW has some anxiety, and that an element of that is situational because of uncertainty about his migration situation. Mr Watson-Munro concluded that this anxiety might escalate because of JZGW’s separation from his daughters, but that his depression (which appears no longer to be manifesting as a major depressive disorder) would abate. Given that the Tribunal concludes he would have access with family support to medical and psychological treatment in Vietnam, I do not conclude that the Applicant’s current physical and mental health conditions rise to the level of being a special and personal impediment.

2. The impact on the Applicant’s minor children has been considered under that relevant primary consideration. It is not appropriate to ‘double-count’ that in this other consideration.  The Tribunal finds that this consideration weighs very marginally in favour of revoking the cancellation decision, because JZGW will take some time to adapt if repatriated and will be affected by the geographic separation from his children.

   Other consideration: Impact on victims

3. While offending of the nature of which JZGW was convicted has a consequent effect on users of illicit drugs, the Tribunal interprets this part of the Direction as meaning evidence of the impact on a victim of a non-citizen’s offending in a case where the victim has knowledge of the migration implications for the non-citizen. As there is no such evidence before the Tribunal, this consideration weighs neutrally.

   Other consideration: Links to the Australian community

   Sub-consideration: The strength, nature, and duration of ties to Australia

4. The Tribunal must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely.

5. The Tribunal must have regard to how long the Applicant has resided in Australia and his contribution to the Australian community.

6. JZGW’s movements to and from Australia have been referred to above. He first came to Australia in 1997 and has been back and forth to Vietnam on many occasions since that time, including being out of Australia for the period between 2009 and 2012. He has a former wife here who is an Australian citizen and two Australian citizen daughters. There was no evidence before the Tribunal of any effect on DT, either way.

7. JZGW told the Tribunal about different jobs he has done in Australia, including in restaurants, fruit-picking, and lawn-mowing. He has therefore made some contribution to the national economy. However, the bulk of this was undertaken when he was unlawfully in Australia, which does add a complexion. His main economic activity in Australia was a criminal enterprise.

   Sub-consideration: Impact on Australian business interests

8. The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501CA would significantly compromise the delivery of a major project or important service in Australia.

9. None of the employment JZGW has mentioned rises to the level contemplated in this part of the direction.

10. Overall, the Tribunal finds that this consideration weighs very marginally in favour of revoking the visa cancellation because of the length of time JZGW has spent in this country as a proportion of his life.

    SUMMATION

11. The Tribunal must weigh all the considerations it has assessed under the Direction individually and cumulatively. It must also take into account any other relevant factor it has identified. No other factor has emerged, nor has been suggested by either party.

12. The primary consideration relating to the protection of the Australian community weighs relatively heavily against the Applicant. The primary consideration relating to family violence has been found not to be engaged. The primary consideration relating to the best interests of the Applicant’s minor children in Australia weighs somewhat in his favour. The primary consideration relating to the expectations of the Australian community weighs heavily against him.

13. In respect of the other considerations, the one relating to international non-refoulement obligations has been found not to be relevant. The consideration relating to the extent of impediments, if removed, has been found to weigh very marginally in favour of revocation. The consideration relating to the impact on victims weighs neutrally. The consideration relating to links to the Australian community weighs very marginally in his favour.

14. The cumulative weight of the considerations in the Direction favours affirming the decision under review. In addition, the Tribunal considers that the gravity of the offence engages the commentary in paragraph 5.2(5) of the Direction. The Tribunal finds that the harm that would be caused if the conduct of the Applicant were to be repeated is so serious that even strong countervailing considerations are insufficient to justify not revoking the mandatory cancellation of the visa. As a consequence of this finding, it follows that the discretion provided in s 501CA(4) is not enlivened, and consequently, the reviewable decision is affirmed.

    DECISION

15. Pursuant to s 43(1)(a) of the AAT Act, the Tribunal affirms the decision under review.

142.    I certify that the preceding 141 (one hundred and forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris.  

........................[SGD]................................................

Associate

Dated: 19 October 2022

143.    Dates of hearing:

144.    4, 5 and 11 August 2022

145.    Counsel for the Applicant:

146.    Solicitors for the Applicant:

147.    Ms Tanya Skvortsova

148.    Clothier Anderson Immigration Lawyers

149.    Counsel for the Respondent:

150.    Ms Laura Mills

151.    Solicitors for the Respondent:

152.    Mills Oakley Lawyers

Annexe – Exhibits

Agreed Remittal Bundle (‘RB’), lodged 3 August 2022  Exhibit R1

Supplementary Remittal Bundle (‘SRB’), lodged 29 July 2022  Exhibit R2

DFAT Country Information Report Vietnam, dated 11 January 2022           Exhibit R3

Applicant’s statement dated 22 June 2022  Exhibit A1

Bundle of letters between Applicant and daughters, lodged 26 July 2022    Exhibit A2

Letters from Applicant’s daughters, dated 7 July 2022  Exhibit A3

Bundle of photographs from Applicant’s daughters  Exhibit A4

Extracts from IHMS clinical records, lodged 7 July 2022  Exhibit A5

Statement of Mrs KM, dated 14 June 2022  Exhibit A6

Psychological report of Mr Tim Watson-Munro dated 21 June 2022 Exhibit A7

Letter of Instruction to Mr Watson-Munro from solicitors  Exhibit A8

Statement of Mr GW, dated 27 July 2022  Exhibit A9

Statement of Mr TQN, dated 22 June 2022  Exhibit A10