JZGW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 4430
•4 November 2020
JZGW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4430 (4 November 2020)
Division:GENERAL DIVISION
File Number:2020/5040
Re:JZGW
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R West
Date:4 November 2020
Place:Melbourne
The Tribunal affirms the decision under review.
..........................[sgd]...............................................
Member R West
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of a minor child – expectations of the Australian community – other considerations – decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Confiscation Act 1997 (Vic)
Migration Act 1958 (Cth)
Sentencing Act 1991 (Vic)
Poisons and Controlled Substances Act 1981 (Vic)Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Gordon and Minister for Immigration and Border Protection (Migration), Re [2018] AATA 39HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Steve v Minister for Immigration and Border Protection [2018] FCA 311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Zhao v The Queen [2018] VSCA 267Secondary Materials
Direction No. 79 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – Part C
REASONS FOR DECISION
Member R West
4 November 2020
INTRODUCTION
In these proceedings, the Applicant seeks a review of the decision of a delegate of the Respondent made on 12 August 2020 not to revoke the mandatory cancellation of his Class BC (Subclass 100) Spouse visa, which was cancelled on 7 December 2018 pursuant to
s 501(3A) of the Migration Act 1958 (Cth) (“the Act”). An application for review of the delegate’s non-revocation decision was lodged with the Tribunal on 20 August 2020.
The cancellation of the Applicant’s visa under s 501(3A) of the Act followed his convictions in the County Court of Victoria in 2015 for the offence of traffic in large commercial quantity - cannabis which resulted in the imposition of a term of imprisonment of eight years and six months with a minimum parole period of six years and six months.
The Tribunal conducted a hearing of the application on 21, 22, 23 and 27 October 2020. The Applicant was represented by Ms Tanya Skvortsova of counsel. The Respondent was represented by Mr Lenny Leerdam, a solicitor. The Applicant had the assistance of a Vietnamese interpreter.
The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 pandemic. These restrictions necessitated that the hearing not be conducted in person. The Applicant and the Respondent each consented to the hearing proceeding on the basis that it was conducted by audio/visual link. The Tribunal determined pursuant to s 33A of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) that the matter be heard by audio/video link.
In conducting the review, the Tribunal has had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to s 500(6F) of the Act, sequentially numbered from 1 to 546 (G Documents),[1] and supplementary documents produced under summons and filed by the Respondent, sequentially numbered from 1 to 746 (SG Documents);[2]
[1] Referred to in this decision by the G number of the document and the relevant page number in the bundle.
[2] Referred to in this decision as an SG with the relevant page number in the Tender Bundle.
(b)documents tendered by the Applicant and marked as exhibits, being:
(i)Witness statements of the Applicant dated 3 May 2019 (Exhibit A1) and 24 September 2020 (Exhibit A2);
(ii)Reports of consultant psychologist Tim Watson Munro, dated 23 August 2019 (Exhibit A3) and 24 September 2020 (Exhibit A4);
(iii)Letter from Mr DD, dated 21 September 2020 (Exhibit A5);
(iv)Witness statement of Mr TQN, dated 24 September 2020 (Exhibit A6);
(v)Witness statement of Mr NVT, dated 22 September 2020 (Exhibit A7);
(vi)Witness statement of Mr VTN, dated 24 September 2020 (Exhibit A8);
(vii)Explanatory Statement Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 (ACT) – (Exhibit A9)
(viii)Extract of Report of the Royal Commission into Family Violence Vol V March 2016 (Exhibit A10);
(ix)Paper on Temporary Migrant and Family Violence – Monash University (Exhibit A11);
(x)Paper – Towards a Durable Future: Tackling Labour Challenges in the Australian Horticultural Industry – Adelaide University (Exhibit A12);
(xi)UWU Submission to Select Committee on Temporary Migration (Exhibit A13); and
(xii)DFAT Country Information, Vietnam - December 2019 (Exhibit A14).
(c)the oral evidence of:
(i)the Applicant;
(ii)Mr Tim Watson Munro, consultant psychologist;
(iii)Mr DD;
(iv)Mr TQN;
(v)Mr NVT; and
(vi)Mr VTN.
BACKGROUND
The Applicant is a citizen of Vietnam. He first arrived in Australia in May 1997 on a Class TU (subclass 560) student visa. The visa expired in October 1997 and the Applicant remained in Australia unlawfully until his departure for Vietnam on April 2008.
The Applicant was married to Ms T in January 2008 and upon return to Vietnam, he applied for and was granted a Provisional Partner (subclass 309) visa in October 2008. The Applicant travelled to Australia for a period of approximately four weeks in November 2008 and again in March-April 2009, but he otherwise remained in Vietnam until he returned to Australia in February 2012.
During the period from February 2012 to July 2013, the Applicant travelled to Vietnam for short periods on three occasions. In July 2013, the Applicant was arrested by Victoria Police and subsequently charged with drug trafficking offences for which he stood trial in the County Court of Victoria. He was convicted in June 2015 of the offence of traffic in large commercial quantity – cannabis and sentenced to a term of imprisonment of eight years and six months with a non-parole period of six years and six months.
The Applicant remained in custody continuously from the date of his arrest and was in custody serving his sentence at the time of the hearing in this matter.
The Applicant’s Class BC (Subclass 100) Spouse visa was cancelled on 7 December 2018 pursuant to s 501(3A) of the Act.
LEGISLATIVE FRAMEWORK
Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:
(a)the Applicant passes the character test as defined in s 501; or
(b)there is another reason why the cancellation should be revoked.
The Applicant’s visa was cancelled under s 501(3A) of the Act as the delegate was satisfied that he did not pass the character test. Section 501(6)(a) provides that a person is deemed not to pass the character test if they have a substantial criminal record. Section 501(7)(c) provides that for the purpose of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Applicant does not dispute that he does not pass the character test in s 501(3A) of the Act.
Accordingly, the sole issue before the Tribunal in these proceedings is whether, under
s 501CA(4)(b)(ii), there is another reason why the mandatory cancellation should be revoked.
The existence or otherwise of another reason should be established on the balance of probabilities.[3]
[3] Re Gordon v Minister for Immigration and Border Protection (Migration) [2018] AATA 39 at [57].
Direction 79
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the directions.[4]
[4] Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591.
In this case, Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction”), applies. The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked. Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to the revocation of a cancellation decision are contained in Part C of the Direction. Paragraph 13 of the Direction provides for three primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)best interests of minor children in Australia affected by the decision; and
(c)expectations of the Australian community.
Paragraph 14 of the Direction provides for other considerations. These include, but are not limited to:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations. The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation.
The principles in paragraph 6.3 are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-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.EVIDENCE
The Applicant gave evidence that he first entered Australia on a student visa in May 1997 to study English, having partially completed an economics degree in Vietnam prior to arriving. He stated that he did not return to Vietnam at the expiration of his visa because he was scared of his father who was very rigid and was often violent towards me, my sister and my mother while I was growing up.[5] He remained illegally in Australia until April 2008.
[5] Exhibit A1 at [5].
The Applicant said that between 1997 and 2005 he worked as a waiter and kitchen hand and as a cook in several Vietnamese restaurants in Melbourne and was paid in cash at the rate of around $6 per hour. He said he also did seasonal farm work in Mildura picking rockmelons and eggplants. He said that after 2005, he ceased working in restaurants and did farm work and lawn mowing which paid around $10 per hour.
The Applicant said that he met Ms T in 1999 or 2000. They were married in January 2008 and divorced in July 2012. Ms T was married to another man Mr H from 2003 until they divorced in 2007. The Applicant’s account of the nature of his relationship with Ms T in the period from 1999 to 2012 was inconsistent and contradictory.
In May 2005, the Applicant’s daughter F was born.[6] Mr H, who at the time was married to Ms T, was named as the father on F’s birth certificate. Until after 2009, both the Applicant and Ms T falsely claimed that Mr H was F’s biological father, but later they each asserted in statements to the Immigration Department and to the Federal Circuit Court that the Applicant was in fact F’s biological father.[7]
[6] G7 at p. 70.
[7] Exhibit A1 at [13] see also the Applicant’s statement of 3 May 2019.
The Applicant’s second child, N, was born in February 2008 and the Applicant was named as the father on her birth certificate.
The Applicant gave evidence that he voluntarily presented to the Department of Immigration in March 2008 and returned to Vietnam in April 2008 with his daughter F. While offshore, he applied for and was granted a Provisional Partner (subclass 309) visa in October 2008. He briefly returned to Australia in November 2008 to meet the conditions of his visa and again in March 2009. He then remained in Vietnam with his daughter N until February 2012 when they returned to Australia.
In July 2008, a Mr D was arrested in relation to his involvement in a drug trafficking operation to which the Applicant and Ms T were later found to be parties.
In April 2009, while the Applicant was in Vietnam with his daughter N, Ms T was arrested in Australia and charged for her involvement in the drug trafficking operation. She was sentenced to prison and was released in November 2011. While she was in prison, the Applicant’s daughter F was placed in foster care and she remained in foster care from April 2009 until January 2012 when she was returned to the custody of Ms T.
In March 2013, the Applicant was granted a Permanent Partner (subclass 100) visa. He travelled to Vietnam for short periods in May 2012, August 2012 and February 2013 and in July 2013 he was arrested at the airport in the process of again departing to Vietnam.
In June 2015, the Applicant was convicted in the County Court of Victoria for the offence of traffic in large commercial quantity - cannabis which resulted in the imposition of a term of imprisonment of eight years and six months with a minimum parole period of six years and six months.
The Applicant explained his involvement in trafficking cannabis.[8] He claimed that Ms T was controlling and exerted power over him in the relationship because of his unlawful immigration status. He said she was unhappy with the money he was earning in his employment. He said they became involved in trafficking through Ms T’s contacts. He said that his role in the offending involved taking phone calls from our co-offenders and arranging for them to come to the house in East Keilor. The Applicant said that he purchased the property in East Keilor in Ms T’s name in 2007 with a $300,000 advance from his father. The Applicant said that the cannabis was sourced from people known to Ms T. On the other hand, Ms T asserted in an affidavit filed in the Federal Circuit Court in July 2017 that she and the Applicant became involved in drug trafficking through the influence of the Applicant’s uncle.[9]
[8] Exhibit A1 at [20]-[26]
[9] Affidavit of 20 July 2017 – SG at p.573-581 at [10].
In March 2014, Ms T took out an intervention order against the Applicant prior to her giving evidence for the Crown in the Applicant’s committal proceeding. Ms T stated in the application that the Applicant had assaulted her previously and she feared for her safety if she gave evidence against him. In his evidence to the Tribunal, the Applicant denied the allegations that he had ever used violence against Ms T or made threats against her or the children.
He gave evidence that he applied to the Federal Circuit Court in May 2016 seeking equal shared parental responsibility for the children and phone contact on a weekly basis but was unsuccessful.
The Applicant called evidence from members of the community who would support him if he is released into the community. Mr DD, Property Manager with a property maintenance and cleaning company gave evidence that, on the recommendation of an employee who had known the Applicant in prison, he was prepared to offer the Applicant employment upon his release from prison.[10] Mr TQN gave evidence that he was prepared to offer the Applicant employment in his building business and to allow him to live with his family in their house upon his release.[11] Mr NVT gave evidence that he was prepared to employ the Applicant in his café business.[12] Mr VTN gave evidence that he was prepared to allow the Applicant to live with his family in their home if he is released into the community.[13]
[10] Exhibit A5.
[11] Exhibit A6.
[12] Exhibit A7.
[13] Exhibit A8.
The Applicant also called evidence from Mr Tim Watson Munro, consultant psychologist, who provided two reports to the Tribunal dated 23 August 2019[14] and 24 September 2020,[15] and gave evidence by telephone. Mr Watson Munro concluded in his report of 24 September 2020:
I am of the view that [the Applicant’s] risk of reoffending is low. In this regard, I concur
with the opinion expressed by the Delegate of the Minister of Home Affairs. It is
clear that in the subsequent 12 months since I reported upon him in August 2019,
he has matured further. He is well regarded by the prison authorities and is keen
to renew his life in the Australian community, if given the opportunity.
His time in custody has reinforced his insight to the gravity of his past ways. He
has clearer insight to the dynamics of his offending on the Australian community
and in particular, the impact of illicit drug use on our citizens. He has expressed a firm resolve to not reoffend.
[14] Exhibit A3.
[15] Exhibit A4.
Objections to admission of material included in G documents
The Applicant objected in closing submissions to the admission of the following material contained in the G documents:
(a)material from the original Police investigation;[16]
(b)material from the pre-trial process, such as committal evidence, evidence of compulsory examinations, and summaries prepared by the Prosecution;[17] and
(c)evidence given at criminal trial.[18]
[16] SG1, SG2, SG3, SG4, SG5, SG6, SG10 and SG11.
[17] G6, SG7, SG8, SG9 and SG12.
[18] G7, G8 and G9.
The Applicant argued that any invitation to consider that material would, in effect, seek for the Tribunal to put itself in the shoes of the jury and ‘re-hear’ the trial, albeit on incomplete evidence and without the benefit of observing the witnesses’ presentation and heeding to relevant evidentiary directions. It would seek to have the Tribunal ‘go behind’ the facts as found by the sentencing judge. This is comparable to the task that was deemed impermissible by McKerracher in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, cited recently by the plurality in NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176.
The Applicant objected to the Tribunal having regard to the transcripts of covert recordings of the Applicant’s conversations in November 2008 and March 2009 to consider the factual basis underpinning the Applicant’s conviction, but did not object to the Tribunal having regard to them for the purpose of assessing the Applicant’s claims as to why he engaged in criminal offending and for no other purpose.
The Tribunal accepts that the Applicant’s objection raises a valid point in relation to the Tribunal admitting the material for the purpose of going behind the criminal verdict and the Tribunal has not had regard to it for that purpose. Consistent with HZCP, the Tribunal accepts the facts as found in the sentencing remarks. As to the transcript of the covert surveillance, the Tribunal has had regard to the transcript in so far as it relates to the Applicant’s answers to questions put to him about the transcript in cross-examination for the limited purpose of assessing the credibility of the Applicant’s responses. The Applicant did not object to that cross-examination.
PRIMARY CONSIDERATIONS
Protection of the Australian community
In considering whether the Applicant represents a risk to the Australian community, the Tribunal has had regard to the matters set out in paragraph 13.1 of Part C of the Direction.
Paragraph 13.1 provides:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, the Direction requires that decision-makers have regard to the factors set out in paragraphs 13.1.1(1)(a)–(i). A consideration of the factors, relevant in the Applicant’s case, is set out below.
Principle (a) – violent and/or sexual crimes are viewed very seriously
There is no evidence that the Applicant was involved in crimes of a violent or sexual nature.
Principle (b) – crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed
The evidence establishes that the Applicant was subject to an intervention order[19] taken out by his former spouse in March 2014 while he was in prison. In the evidence presented to the court by the Applicant’s ex-spouse, she asserted that the Applicant had assaulted her and she feared for her safety because she was to give evidence for the Crown in his criminal case.[20] The Tribunal notes that the application for an intervention order was heard on an ex-parte basis and the evidence of the Applicant’s ex-spouse was not tested and has been denied by the Applicant. This evidence does not provide a proper basis for the Tribunal to make a finding that the Applicant had engaged in criminal conduct of a violent nature against women or children and no such finding is made.
Principle (c) – crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious
[19] G20 at p.390
[20] G20 at p.385
There is no evidence that the Applicant was involved in crimes of this nature.
Principle (d) – the sentence imposed by the courts for a crime or crimes
The Applicant was sentenced to imprisonment for eight years and six months with a non-parole period of six years and six months. In addition, the Applicant was declared to be a serious drug offender under s 89DI of the Sentencing Act 1999 (Vic) which has consequences under the Confiscation Act 1997 (Vic) for the restraint, confiscation or forfeiture of assets belonging or linked to the offender.
Principle (e) – the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness
The Applicant was convicted of a single offence involving the trafficking of large commercial quantities of cannabis over the period from 5 June 2007 and 15 July 2018. However, the nature of the offence involved a continuing breach of the law. The sentencing judge noted in her sentencing remarks that the charge against the Applicant involved the shipment of over 50 kilograms on 21 occasions during the charge period for a total estimate quantity of 447 kilograms.[21]
Principle (f) – the cumulative effect of repeated offending
[21] SG at p. 597
There was clearly a cumulative effect of the Applicant’s continuing offence as the quantity of illicit drugs transported progressively increased over the charge period and, although only one trafficking charge was alleged, it was in effect the same as a series of repeated infringements.
Principle (g) – whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending
There is no evidence that this principle is relevant.
Principle (h) – whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour)
There is no evidence that the Applicant was formally warned or otherwise made aware, in writing, about the consequences of further offending in terms of his migration status.
Principle (i) – a crime committed while the non-citizen was in immigration detention… is serious
The Applicant has not been in immigration detention and there is no evidence that the Applicant committed any crime while in prison.
Conclusion
Having regard to the factors set out in paragraphs 13.1.1(1)(a)–(i), the Tribunal is satisfied that the Applicant’s offending was very serious as reflected in the sentencing remarks of the sentencing judge and in the term of imprisonment imposed by the Court. Her Honour stated:[22]
There is no doubt that your offending is very serious. Regardless of the exact quantity of cannabis over 250 kilograms, there is no doubt that the quantity was well over the threshold. You were actively involved in organising and receiving payment. The frequency of trafficking by you brings it within the business of trafficking as defined in R v Giretti (1986) 24 A Crim R 112 and I accept that you were a wholesaler of the cannabis and I am satisfied from the covert recording that you were used to dealing personally with Terry Barry about the business you conducted with him and did not defer to anyone else when doing so.
[22] SG at p.601.
The seriousness of drug trafficking offences is made clear from the fact that under s 71AA of the Poisons and Controlled Substances Act 1981 (Vic) trafficking a drug of dependence (which includes cannabis) in commercial quantities is an indictable offence punishable by a maximum term of imprisonment of 25 years.
The Risk to the Australian Community
As to the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, paragraph 13.1.2 of the Direction states:
(1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm
The Applicant’s offending is confined to the trafficking of cannabis in commercial quantities.
The Tribunal notes that studies of harm from the misuse of drugs show that heroine, crack cocaine and methamphetamine are more harmful illicit drugs[23] than cannabis. The Tribunal also recognises that the possession of small amounts of cannabis has been decriminalised in the Australian Capital Territory since 1992.[24] However, that is not to say that the cannabis is not a harmful drug. Independent studies[25] identify a substantial risk for users and non-users from the use of cannabis when taking into account various physical, psychological and social factors. In Victorian law, it is categorised as a drug of dependence under the Poisons and Controlled Substances Act and using cannabis is an offence under s 75 of that Act.
[23] G24.
[24] Exhibit A9.
[25] See for example G24 at p.474.
The harm to the Australian community resulting from commercial drug trafficking is not confined to the harm experienced by individual drug users. The conduct of large-scale criminal undertakings of the kind undertaken by the Applicant undermines the good order and cohesiveness of the community as a whole and causes a drain on the resources of the community, particularly in relation to policing and health services.
The Tribunal is satisfied that should the Applicant engage in any further conduct of the kind for which he was previously convicted, it has the potential to cause significant harm to the Australian community.
The likelihood of re-offending
Mr Watson Munro gave evidence that the risk of the Applicant committing further offences if returned to the community was low. He attributed this to a number of factors. He said the Applicant had expressed remorse, a significant period of time had elapsed since his offending and the Applicant had reflected on his past conduct and had insight into the dynamics which led to his crimes. He also highlighted that the Applicant had strong ties to the community, he had offers of work and accommodation, the prospect of being reunited with his children and had no history of drug or alcohol abuse and in any even had been abstinent for over seven years. He also pointed to the Applicant’s stated willingness to seek professional assistance.
Many of the factors identified by Mr Watson Munro are confirmed by independent facts. The Applicant has a good record over the seven years he has been in custody[26] and there is evidence that he has participated constructively in programs while in prison.[27] Notwithstanding the Applicant’s conviction for drug trafficking, there is no evidence that he has a problem with substance abuse, and prison reports include nil concerns regarding urinanalysis results.[28] Evidence was led that he has employment and accommodation options upon release.[29]
[26] See G22.
[27] G21 at pp.392-397.
[28] See for example G22 at p.469.
[29] See Exhibits A5, A6, A7 and A8.
The contentious issue is the extent to which the Applicant has genuinely reflected on his involvement in the criminal activity and accepted responsibility for his role and whether he is truly remorseful for his offending.
Mr Watson Munro said it is common for people to say they are remorseful, but true remorse occurs where the person reflects insights into their offending behaviour and the factors which led to the offending. He acknowledged that his assessment of the Applicant was based on his understanding of the dynamics of the Applicant’s relationship with Ms T as related to him by the Applicant. He described his assessment of the Applicant’s relationship with Ms T as the Applicant being in a one down position. He said he thought the Applicant found it difficult to assert himself in a peer group situation. He was a follower not a leader. However, Mr Watson Munro acknowledged that the Applicant may not have fully developed insight into his offending if he has hung onto a false version of events to justify his actions and may be limited in the scope of his acceptance.
The Tribunal has reservations about the extent to which the Applicant is genuinely remorseful. It notes that the Applicant’s only expression of regret in his two written statements was in his sworn statement of 24 September 2020 that:
I know that I made a serious mistake in my life by being involved in trafficking cannabis. I intend to devote the rest of my life to working hard and contributing to the lives of my children….
This statement falls well short of an unqualified expression of remorse for having been involved in such serious criminal conduct. In his oral evidence, the Applicant attributed his involvement in the trafficking operation variously to his stupidity, to being under pressure, to his poor English but principally because he was overborn by Ms T. At no stage in his evidence did the Applicant take full responsibility for his involvement in the criminal activity. He expressed no remorse for the effect of his conduct on the Australian community. His regret was that he had been caught and imprisoned and lost contact with his daughters. He described Ms T giving Crown evidence in his trial as a betrayal.
Consistent with Mr Watson Munro’s perception, the Applicant asserted in his oral evidence that his involvement in drug trafficking was due to Ms T. He stated that he was overborn by Ms T whose idea it was to get involved in drug trafficking and it was Ms T who arranged the contacts with people she knew. He said that Ms T was able to manipulate him because of his unlawful migration status and that he didn’t have a say in the relationship.
The Applicant’s explanation was not born out by the evidence during his criminal trial and the sentencing judge made it clear in her sentencing remarks that rather than him being a minor player overborn by Ms T, the evidence showed that the Applicant conducted the wholesale trafficking business and he did not defer to anyone else when doing so. These conclusions are at odds with Mr Watson Munro’s understanding of the dynamics of the Applicant’s relationship with Ms T and the forcefulness of his personality generally.
It is significant also that the Applicant plead not guilty to the charge for which he was convicted and the sentencing judge noted in her sentencing remarks that the Applicant had expressed no remorse.
Of course, things can change, and as Mr Watson Munro opined, a person’s understanding of their behaviour is an evolving process. An assessment of whether the Applicant is now genuinely remorseful and unlikely to re-offend involves assessing his credibility.
Applicant’s Credibility
The Applicant insisted that he remained in Australia unlawfully from 1997 until 2008 because he was fearful of his father who was abusive, yet he returned to Vietnam in 2008 and stayed with his parents for almost four years and worked with his father in his business.
The Applicant’s various accounts of his relationship with Ms T over many years contained numerous inconsistencies and contradictions.
In his witness statement of 3 May 2019,[30] he stated that he began a sexual relationship with Ms T in around 1999/2000 and only became aware that Ms T had married Mr H in 2003 after his daughter F was born in 2005.[31] In his oral evidence, he stated that his relationship with Ms T was initially a friendship and it did not become sexual until around 2004 and that he was aware of her marriage to Mr H in 2003. In a statutory declaration provided to the Immigration Department and declared on 1 April 2008,[32] the Applicant set out in detail an account of his relationship with Ms T which fully acknowledged the relationship between Ms T and Mr H from its inception in 2002 and stated clearly that Mr H was the biological father of F. In that declaration, the Applicant asserted that he did not commence a sexual relationship with Ms T until after she separated from Mr H in 2006.
[30] Exhibit A1.
[31] Exhibit A1 at [12].
[32] SG at pp.680-685.
The Applicant claimed in his statement of 3 May 2019 that Mr H, who at the time was married to Ms T, was named as the father on F’s birth certificate, but he was in fact the biological father.[33] He said that Ms T did not name him as the father on the birth certificate because he was unlawful at the time. His affidavit of 1 April 2008 asserted that Mr H was the father of F. In an interview with an immigration official in September 2008,[34] in relation to his application for a provisional partner visa he described himself as F’s adopted father. When he was directly asked if he was the biological father of F he replied: No I am not. When asked if it was possible that he was the biological father he replied: I don’t think that I am. The Applicant acknowledged the falsity of these statements in his evidence and apologised to the Tribunal for making them. While he accepted responsibility for making the statements, it is significant that he added that Ms T had forced him to tell lies about F’s paternity.
[33] Exhibit A1 at [13].
[34] SG at p.721.
In an affidavit filed with the Federal Circuit Court dated 20 July 2017,[35] Ms T asserted that it was the Applicant who insisted that he not be named on the birth certificate because he did not want to alert the government to his presence in Australia. The Applicant’s explanation for falsely representing that F was his step daughter when she was his biological daughter was that he had to hide the fact that he had an extra-marital affair with Ms T and he thought he would be deported if the Immigration department found out he was living in Australia unlawfully. He denied that it was because it could affect Ms T’s permanent residency. The Applicant’s counsel also sought to explain the Applicant’s false statements on the basis that Ms T was his visa sponsor and he was beholden to her at the time he made the false statements.
[35] SG at p.581.
The Applicant asserted in his final submissions that the Tribunal should accept that he was overborn by Ms T and that he lied in order to engender her goodwill as his spouse and visa sponsor. It is difficult for the Tribunal to reach any final conclusion in relation to the Applicant’s motivation for making the false and inconsistent statements regarding his relationship with Ms T and regarding the paternity of F because the evidence is incomplete. The Tribunal essentially only heard the Applicant’s side of the story. Even assuming that the Applicant was overborn by Ms T, it is clear that the Applicant was prepared to make false representations regarding the nature of his relationship with Ms T and he was prepared to lie in sworn evidence regarding the paternity of his daughter F.
The Applicant’s counsel argued in her final submissions that the Applicant had admitted he made misstatements to the Department of Immigration when interviewed in 2008 and in his affidavit of 1 April 2008[36] but they were simply misstatements and not of such gravity as should cause the Tribunal concern as to the Applicant’s credibility. The Tribunal rejects this submission. First, the Applicant’s affidavit did not simply contain a misstatement of fact, it amounts to a detailed false narrative regarding Ms T’s circumstances which was clearly designed to mislead the Department. Secondly, the Tribunal regards false statement under oath to be a serious matter going to the credibility of the person making the statement.
[36] SG at pp.680-685.
The Applicant was taken in cross examination to the transcript of covert surveillance conducted in November 2008 and the record of a conversation between the Applicant and co-offenders Mr D and Mr B on 17 November 2008.[37] The Applicant did not dispute the authenticity of the transcript and he acknowledged that he had had a conversation with
Mr D and Mr B, but said they used slang language and his English was poor and he didn’t understand everything that was said. The transcript reveals that he was a significant contributor to the conversation.
[37] SG at p.1-220.
At one point in the conversation,[38] the Applicant is recorded as saying that his wife (Ms T) had said she was not aware of the day his partner was back and later his partner had said that he should not believe his wife. During the hearing, when asked if he had a partner in the drug business, the Applicant denied it and said just his wife. He said that the reference to his partner in the conversation was a reference to his wife’s friend.
[38] SG at pp.41-42.
At another point in the transcript,[39] the conversation turned to the growing of cannabis indoors, the electricity usage, risk of fire and other issues. The Applicant did not dispute that the conversation occurred but insisted that at the time he did not understand what was being discussed and said that when he was talking it was just keeping the conversation moving.
[39] Sg at p.85.
Having observed the Applicant giving his response to questions regarding the transcript, the Tribunal is satisfied that the Applicant was deliberately evasive and lacked candour.
The Applicant was also questioned about the inventory of goods found in the house at East Keilor as revealed in the transcript of a police interview with Ms T on 29 April 2009, the day of her arrest.[40] The Applicant was taken to pp. 310-312 of the transcript at which the police officer identified multiple bottles of expensive wines and spirits found at the property. The Applicant confirmed in his evidence that this was his wine and spirits. The Applicant estimated the value as around $50,000. He said that he purchased it from wine auctions over the period from 1999 to 2008. He denied that he had used money from drug trafficking and instead had funded it from spare money he had earned in his work in restaurants and as a cleaner. The Tribunal finds that this evidence was not credible. The Applicant’s own evidence was that he earned only $6 per hour up to 2005 and $10 per hour after that.
[40] SG at pp. 276-319.
The Applicant was also taken to the transcript at p. 390 where Ms T stated to police that the Applicant did not work and was supported financially by his father in Vietnam. In cross-examination, the Applicant denied this and denied that he had supported himself with his drug trafficking business up to November 2008. He maintained that he had earned his money in employment. The Tribunal finds these complete denials to be implausible given the totality of the evidence, including the Applicant’s admission that his father had send him $300,000 to enable the purchase of a house in Ms T’s name, the evidence of Mr VTN a neighbour of the Applicant’s father who gave evidence that the father had financially supported the Applicant throughout his time in Australia and the volume of the Applicant’s drugs trafficking noted by the sentencing judge in her sentencing remarks.
One further matter of significance arising from the surveillance transcript is the fact that it evidences that the Applicant had continuing contact with his co-accused, Mr D and Mr B after the offending period for which he was convicted, namely 5 June 2007 to 15 July 2008. The Applicant claimed that he participated in the meeting in November 2008 because he was trying to entice the co-offenders to repay a debt they owed to Ms T and he was not being truthful in what he said to them. He said he participated in the meeting in March 2009 but was seeking to extricate himself from the group. An examination of the transcript does not make clear that either explanation is born out.
Having regard to these matters and having observed the Applicant in giving his evidence, the Tribunal is not satisfied that the Applicant has given candid and reliable evidence regarding the circumstances of his offending. The cornerstone of the Applicant’s case that he is a low risk of re-offending is the contention that his criminal conduct was because of the influence exerted on him by Ms T, and that because she is no longer in a position to exert that influence, he will now refrain from any further criminal activity. The Tribunal is not satisfied that this assertion is correct.
In any event, the premise that the Applicant engaged in criminal conduct because he was in a one down relationship is at odds with the finding of the court in his criminal trial as reflected in the sentencing judge’s sentencing remarks. As the Respondent has correctly pointed out, the alleged conduct which the Applicant presses the Tribunal to rely on, in effect, undermines the essential elements of his conviction and the basis of the court’s sentence.[41]
[41] See HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
Having considered Mr Watson Munro’s expert opinion and the evidence as a whole, the Tribunal accepts that there are objective reasons to support the view that the Applicant is a low risk of re-offending. However, having observed the Applicant give his evidence, the Tribunal is not convinced that the Applicant is genuinely remorseful for his actions or satisfied that he has been candid in describing the circumstances leading to his serious offending. This leads the Tribunal to assess the risk that the Applicant would re-offend if returned to the community as higher than the low risk assessed by Mr Watson Munro, although it could not be described as a high risk. As best the Tribunal can to describe the likelihood of re-offending, it assesses that there is a material risk that the Applicant may re-offend but the possibility does not rise to the level of a high risk.
Conclusion
For the reasons discussed above, the Tribunal is satisfied that the Applicant represents a material risk of re-offending resulting in significant harm to the Australian community. The protection of the Australian community is a primary consideration under the Direction and this factor weighs strongly against revocation.
Best interests of minor children in Australia affected by the decision
Paragraph 13.2 of Part C of the Direction provides:
(1) Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) Whether there are other persons who already fulfil a parental role in relation to the child;
f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
In this case, the Applicant has identified his two daughters F and N as minor children whose interests might be affected by a decision not to revoke the cancellation of the Applicant’s visa.
F is the elder daughter. She was born in August 2005. At the time of her birth her mother, Ms T, was married to another man, Mr H. F’s birth certificate lists Mr H as her father. Ms T and Mr H were divorced in May 2007. The Applicant and Ms T both now assert that the Applicant is the biological father of F and not Mr H. The Federal Circuit Court has endorsed a change to F’s birth certificate to that effect.
While the Tribunal readily accepts that the Applicant is the biological father and has fulfilled the role of father to F, it is relevant to consider the nature and extent of the role he discharged.[42]
[42] The following assessment of the Applicant’s movements is based on the summary table exhibited by the Respondent and agreed by the Applicant – Exhibit R1.
F was born in August 2005. In April 2008, Applicant took her to live with his family in Vietnam. They were later joined by Ms T and N. F remained in Vietnam with the Applicant for almost a year.
In March 2009, the family returned to Australia. Ms T and F remained in Australia, but the Applicant and F’s sister N returned to Vietnam after a few weeks and remained in Vietnam until February 2012. During the intervening period, Ms T was arrested and sentenced to imprisonment for her involvement in the drug trafficking for which the Applicant was subsequently arrested. While Ms T was in custody F was placed in foster care. Her foster care commenced in April 2009 and concluded in January 2012. Notwithstanding that the Applicant had a right to enter Australia at the time under a provisional partner visa, he did not make any attempt to return to Australia to try to remove F from foster care. He explained that he was at the time in a dilemma because if he returned to Australia with N and was arrested, N would then have been placed in foster care as well. He claimed he remained in Vietnam with N so that she at least was not separated from both of her parents while Ms T was in prison.
In February 2012, the Applicant returned to Australia with N. During the 18-month period after the Applicant’s return to Australia, the Applicant and Ms T were estranged and lived separately. F lived with Ms T. From July 2012, when the Applicant and Ms T divorced, the Applicant had contact with F on alternate weekends. During this 18-month period, the Applicant returned to Vietnam on three occasions.
In July 2013, the Applicant was arrested and he has been in custody continuously since that time. While in custody the Applicant has had no physical or telecommunication with either of his daughters. In March 2014, Ms T obtained an intervention order[43] against the Applicant which prevents him having contact with Ms T and both of the children. In May 2016, the Applicant unsuccessfully applied to the Family Court for an order giving him equal shared parental responsibility. Under the terms of the court orders currently in place the Applicant’s contact with his daughters is limited to him receiving written communication from them on special occasions such as Chinese New Year, Fathers’ Day and birthdays.
[43] SG at p.474.
Having regard to this history, it is clear that the nature and extent of the parental role played by the Applicant in respect of F is very limited. He was involved in her upbringing between 2005 and 2009 when she was under four years of age. He had no direct contact with her for the next three years from March 2009 until February 2012 during which time he was in Vietnam and F was in foster care and her mother in prison. He had some limited contact in the context of an estranged relationship with Ms T during the 18 months between February 2012 and July 2013. For more than seven years after July 2013, he has had no direct contact with her.
The nature and extent of the Applicant’s contact with N is not dissimilar. N was born in February 2008. Shortly after her birth, the Applicant took F to Vietnam. N and Ms T joined them several months later. N stayed with the Applicant and his family in Vietnam until February 2012, while Ms T and F returned to Australia. Upon returning to Australia, N stayed with the Applicant until returning to her mother in May 2013. In July 2013, the Applicant was arrested and has been in custody ever since. Thus, the Applicant was involved with N’s upbringing up until she was five years old, from about July 2008 until around July 2013, but he has had no direct contact with her for more than seven years since then.
The Applicant gave evidence of his desire to re-establish his relationship with his daughters if released into the community and how that was a motivation for him to turn his life around. He stated in his sworn statement dated 24 September 2020:[44]
I love my children dearly, and I want to play a significant role in their lives, even though my ex-wife and I are no longer together. This is the most important thing in the world for me.
[44] Exhibit A2 at [9].
The Tribunal readily accepts that it would be in the interests of the Applicant to be able to re-establish a relationship with his children and that this is an important factor in the Applicant’s plans for the future. However, under Paragraph 13.2 of Part C of the Direction, the issue for the Tribunal to consider is not what is in the Applicant’s best interests but whether revocation is in the best interests of the children.
As a general proposition, the Tribunal accepts that a child’s best interests are served by having the opportunity to have direct physical contact with both of their parents. However, this proposition must be considered having regard to the particular circumstances in each case.
The children in this case have a fractured history. They have had a disrupted childhood. They have each been separated from each other and from each of their parents for prolonged periods. They have witnessing the breakup of their parent’s relationship. They have experienced both parents being sent to prison for long periods. F has spent over two years in foster care. There is no evidence before the Tribunal to indicate that an assessment has been made by any professional or other independent person that in these circumstances it is in the best interests of the children that the Applicant remain in Australia.
The evidence does not establish that there is a pressing need for the children to be reunited with the Applicant. In sworn evidence to the Federal Circuit Court in July 2017,
Ms T stated that the children are settled and doing well at school and that Ms T’s brother, S has been supporting her in bringing up the girls and has played a parental role.[45] This evidence, which is not disputed by the Applicant, establishes that the there are other persons who already fulfil a parental role in relation to the children.
[45] Affidavit of Ms T dated 20 July 2017 - SG at p.574 paras [6]-[8].
There are indications in the evidence that contact with the Applicant in the future should not necessarily be assumed to be positive for the children:
(a)the Federal Circuit Court has refused to grant the Applicant equal shared parental responsibility and his contact with the children is limiting to them providing short handwritten notes on Fathers’ Day, birthdays or Chinese New Year;[46]
(b)the Court has ordered that Ms T arrange for the children to be provided with therapeutic counselling[47] indicating that they have some vulnerability;
(c)Ms T has stated that the children have not responded to 10 letters sent to them by the Applicant, and while not distressed or saddened by them, they expressed confusion as to their contents;[48]
(d)the only communication the children have had with the Applicant since 2017 is to send him brief greeting cards[49] in accordance with the Federal Circuit Court’s orders of 8 August 2017[50] which required Ms T to ensure that they do so;
(e)Ms T has alleged in a sworn statement[51] that the Applicant’s contact with the children in the past may have been inappropriate; and
(f)the Applicant has suffered from anxiety and depression and has had suicidal ideation for which he has been prescribed medication and has been recommended to undergo cognitive behavioural therapy. [52]
[46] SG at pp. 636-637.
[47] See [3] and [5] of the minutes of orders - SG at p.631.
[48] SG at 578-579 in [42]-[47].
[49] G17 at pp. 376-382.
[50] SG at p. 637.
[51] Affidavit of Ms T dated 1 May 2017 – SG at p.553-556 at [12] She stated:
..when our children returned from time with[the Applicant], they would return smelling of smoke and repeating inappropriate words. On one particular occasion in early 2013 F returned with a long scratch on her arm. I asked her what had happened and she told me that she was scratched by a dog when her father took her and her sister to a party in Sunshine. She said people at the party were smoking and drinking alcohol and "much more". She did not say what she meant by this. I am aware from my relationship with [the Applicant] that he often attended parties with other people who dealt in illegal drugs.
[52] This was noted by the clinical psychologist Bernard Healy in his report of 8 July 2014 SG at pp.561-567 and affirmed in his subsequent report in 2015- SG at pp.569-572. Mr Watson Munro expressed the view that the Applicant did not have any major psychological problems but he did have some anxiety and would benefit from ongoing cognitive behavioural therapy.
These matters do not establish that it is not in the children’s best interests to have contact with the Applicant. However, they are relevant to whether the Tribunal can simply assume that the general proposition, that it is in the children’s interests to have contact with each of their parents, holds true in this case. In the absence of a proper assessment of the likely impact on the children of resumed contact with the Applicant, the Tribunal is reluctant to rely just on that general proposition and conclude that revocation is necessarily in their best interests.
A further consideration in this regard is the significant barriers the Applicant would likely face to re-establish his relationship with his children if he is released into the community. The evidence clearly indicates that the relationship between the Applicant and Ms T is fraught. They have effectively been separated since 2009 and were divorced formally in July 2012. Ms T gave evidence against the Applicant in his criminal trial and has taken out an intervention order against him.
While the current family court orders and the intervention order remain in place, the Applicant would be unable to contact his children. The Applicant admitted in his evidence that he does not know where his children are living. It may well be that the Applicant, when given an opportunity to present his case in court, may be able to have the current orders set aside or modified to facilitate access to his children, but that will likely require him to take legal action.[53]
[53] The Orders of the Federal Court provide that:
In the event that the Father is released from gaol and provides satisfactory evidence to the Mother that he has been permitted to remain in Australia as a permanent resident, that it be considered a significant change in circumstances which would permit the Father to reapply to this Court in relation to parenting matters – SG at p.632.
The Tribunal also notes that F is now 15 years old and there is a limited opportunity for the Applicant to play a positive parental role for her as a minor child in the future. In this regard, the Tribunal notes that the Applicant’s sentence is due to expire in January 2022, although he is subject to parole. The minimum parole period has now been served. The Applicant gave evidence that he has been told by someone in the prison that he cannot be granted parole unless the cancellation of his visa is revoked. He did not produce any formal documentation to support this assertion. However, the Applicant did submit that his account was consistent with recent changes in the practice of the Parole Board noted in Zhao v The Queen[54] whereby the Board is reluctant to grant parole where a parolee is to be taken into immigration detention.
[54] [2018] VSCA 267 at [61]-[66].
As the granting of parole is a matter for the appropriate authorities and the Applicant has not been provided any formal evidence regarding his parole status, the Tribunal is not in a position to assess whether the Applicant will be required to serve his full sentence or not. While it seems likely, given the Applicant’s clean record in prison, that he may be granted an early release if the Tribunal were to decide in favour of revocation, it is not clear when that might be.
The Applicant also asserts that he would be able to make a financial contribution to Ms T for the benefit of the children if he remains in Australia where he has firm offers of employment. The Tribunal accepts that this would be of benefit to the children.
Finally, the Tribunal notes that there may be an opportunity for the Applicant to become involved with the children if he is deported to Vietnam. The children have an ongoing connection with extended family in Vietnam and Ms T has expressed her desire to take the children to Vietnam. In her affidavit provided to the Federal Circuit Court in July 2017.[55] Ms T stated:
I want to be able to travel to Vietnam with my children so that I can see my family and so my children can spend time with extended maternal and paternal family. While I do not have the finances to currently do so, I would like it to be an option in the future.
[55] SG at p.579.
In considering the best interests of the children in this case, the Tribunal has significant reservations as to the extent of any positive effect revocation would have for the children. These reservations include the limited parental role played by the Applicant in relation to both children in the past, the absence of any independent evidence that it is in the children’s best interests to now have the Applicant assume a role in their lives, the existence of court orders restricting the Applicant’s access to the children and the possibility that the Applicant could establish a relationship if deported to Vietnam.
The Tribunal is satisfied, notwithstanding the reservations set out above, that revocation would likely be in the best interests of the children, and more likely for the younger daughter N. However, because of the reservations expressed, the Tribunal gives this consideration limited weight notwithstanding that it is a primary consideration under the Direction.
Expectations of the Australian Community
Paragraph 13.3(1) of Part C of the Direction provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not 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.
In considering this factor, two matters are relevant. First and of most importance is the Applicant’s serious criminal offence of trafficking a prohibited drug in commercial quantities over a prolonged period. The Applicant’s willingness to become involved in a criminal undertaking for commercial gain and at the risk of injury to members of the community give rise to legitimate character concerns. Also of importance is the Applicant’s admitted disregard for the immigration laws by remaining in Australia unlawfully for over 10 years from October 1997 until 3 April 2008.
The Tribunal accepts that the Applicant’s serious criminal offending and his disregard for the immigration laws are contrary to the expectations of the Australian community. The Tribunal finds that this consideration weighs substantially in favour of not revoking the Applicant’s visa cancellation.
OTHER CONSIDERATIONS
Paragraph 14 of Part C of the Direction requires that other considerations be taken into account, where relevant.These considerations include (but are not limited to):
(i)international non-refoulement obligations;
(ii)strength, nature and duration of ties;
(iii)impact on Australian business interests;
(iv)impact on victims; and
(v)extent of impediments if removed.
International non-refoulement obligations
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. Paragraph 14.1 of Part C of the Direction sets out the principles to be applied in considering claims which may give rise to international non-refoulement obligations. In this case, the Applicant has not raised any such claim.
The strength, nature and duration of ties
Paragraph 14.2 of Part C of the Direction provides:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant arrived in Australia in 1997 as a student. He remained in Australia unlawfully for over 10 years. During this time, he says he worked as a kitchen hand, waiter and later as a chef in various restaurants and as a fruit-picker in the agricultural sector. For at least 13 months between June 2007 and July 2008, he was involved in the trafficking of commercial quantities of cannabis.
The Applicant has a number of personal contacts in Australia. He has a former wife from whom he is estranged. They have been divorced for over eight years. He has two daughters from whom he has been separated for over seven years, an uncle from whom he is also estranged and two cousins.
The Applicant’s ties with the Australian community are limited by the fact that he has been in prison since July 2013 and prior to that, he had predominantly lived in Vietnam since April 2008. The Applicant did call evidence from three members of the Australian/Vietnamese community, but this evidence failed to disclose any close and endearing relationships. Mr VTN stated that he was a neighbour of the Applicant’s parents in Vietnam and had known the Applicant since he was a young boy. He said he came to Australia in 2017 which was long after the Applicant had entered prison and so he had no relationship with him in Australia. Mr NVT gave evidence that he had met the Applicant a few times which he thought was about four or five years earlier. When it was pointed out that the Applicant had been in prison since 2013, he was unclear how long he had known the Applicant and accepted that he didn’t see him that often. Mr TQN said he had known the Applicant and Ms T since around 2000 and that he and his wife would babysit for the Applicant and Ms T when N was one or two years old. This account is not consistent with the facts. N was five months old when Ms T took her to join the Applicant in Vietnam. The Applicant had gone to Vietnam with F some three months earlier. N remained in Vietnam until she was nearly four years old except for a brief visit to Australia in 2009. The Applicant and Ms T only briefly lived together in Australia as a couple after the birth of N.[56] Mr TQN was also unaware of Ms T’s four-year marriage to Mr H.
[56] Between 17 February 2008 when N was born and 3 April 2008 when the Applicant went to Vietnam with L and between 3 March 2009 when the family returned to Australia and 4 April 2009 when the Applicant returned to Vietnam with N.
The Applicant has maintained a strong connection with Vietnam where he has extended family connections including his father and mother. He lived in Vietnam for almost four years between 2008 and 2012 and he travelled to Vietnam, on a number of occasions between 2012 and 2013.
The Applicant has spent the last seven years in prison.
The Tribunal accepts that the Applicant does have some ties to Australia by virtue of his children and from having lived in the country for the largest portion of the last 23 years. He also contributed as an employee for the first ten or so years. On the other hand, there is no evidence that the Applicant has any long and endearing ties to family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia other than his children. His contribution to the Australian community is limited and off-set by his serious offending.
The Tribunal accepts that the Applicant’s ties to Australia are a factor in favour of revocation but one attracting little weight.
Impact on Australian business interests
Paragraph 14.3(1) of Part C of the Direction provides:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence in this case that the revocation of the Applicant’s visa could have an impact on Australian business and especially the delivery of a major project or an important service.
Impact on victims
Paragraph 14.4(1) of Part C of the Direction provides:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is no evidence as to any impact on a victim of the Applicant’s criminal behaviour of a decision not to revoke the cancellation of his visa.
Extent of impediments if removed
Paragraph 14.5 of Part C of the Direction provides:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
The Tribunal is well satisfied that the Applicant would not face any significant impediments in establishing himself and maintaining basic living standards in the context of what is generally available in Vietnam. He is relatively young and there is no evidence of any significant debilitating health issue. He speaks Vietnamese as his native tongue as well as some English. He is familiar with the customs and traditions of Vietnam and has lived there as a child and as an adult for a significant period. He has family in Vietnam, and his father is a former business owner with significant financial resources. The Applicant described him as a very successful real estate agent and investor in Ho Chi Minh City who had advanced the Applicant $300,000 to purchase a property in Australia in 2007.[57] Notwithstanding the Applicant’s claim that he had an abusive relationship with his father, the Tribunal notes that the Applicant lived with his parents for almost four years between 2008 and 2012. The Applicant also has transferrable skills in the restaurant and agricultural sectors and gave evidence than he worked in his father’s real estate business while in Vietnam between 2009 and 2012.
[57] Exhibit A1 at [19].
The Tribunal is satisfied that this factor does not weigh in favour of revocation.
Other Considerations
Paragraph 14 of Part C of the Direction does not set out an exclusive list of considerations and it permits the Tribunal to have regard to any relevant consideration.
The Applicant has asserted that a consequence of the Tribunal not granting revocation will be that the Applicant will not be granted parole and will have to serve the remainder of his sentence until January 2022 in prison. In addition, it is possible that his deportation to Vietnam may be delayed because of COVID restrictions prolonging his stay in immigration detention.
The Tribunal accepts that a refusal to revoke the cancellation of the Applicant’s visa could prolong his prison sentence by some 14 months if the Parole Board maintains what appears to be its current position. However, if revocation is refused by the Tribunal and the Applicant’s position clarified, it seems possible that the Parole Board may reassess its position and grant him parole so that he can be released into the custody of the immigration authorities and deported rather than serve out the remainder of his sentence.
As to the issue of COVID restrictions the Tribunal is not in a position to assess whether the Applicant’s deportation might be delayed for a significant period because of those restrictions if revocation is not granted. The Tribunal does not have any evidence upon which to make that assessment and it notes that frequent changes have been made by health authorities in response to the progress of the pandemic.
The prospect of the Applicant having to serve a further 14 months in prison is not an insignificant consideration and is a matter that should be given some weight in favour of revocation. However, there is no certainty that this outcome will eventuate and for that reason the Tribunal gives it limited weight.
CONCLUSION
In Gaspar v Minister for Immigration and Border Protection,[58] North ACJ elaborated on how to approach the exercise of the discretion under s 501CA(4)(b)(ii):
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.
[58] (2016) 153 ALD 337 at [38].
Factors Against Revocation
The Tribunal is satisfied that the Applicant’s criminal offending was serious and there is material risk (greater than a low risk but not so great as to be a high risk) that the Applicant will commit further offences of a serious nature or engage in other serious conduct if released into the Australian community. This represents a risk to the welfare of the Australian community. The welfare of the Australian community is a primary consideration under Paragraph 13.1 of the Direction and the risk of re-offending weighs strongly in favour of not revoking the cancellation of the Applicant’s visa.
Similarly, the expectations of the Australian community is a primary consideration. The Applicant has acted contrary to the expectations of the Australian community by engaging in serious criminal conduct and disregarding Australia’s immigration laws for a prolonged period. The Tribunal is mindful that the Direction requires decision-makers to have due regard to the Government’s views as expressed in Paragraph 13.3(1) of Part C of the Direction.
Justice Charlesworth in FYBR v Minister for Home Affairs explained that paragraph 11.3, which mirrors the wording of paragraph 13.3:
…should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[59]
[59] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75]-[76].
Her Honour also noted[60] that:
… Strictly speaking, it is not correct to say that the expectation is one to which the Tribunal “must give effect”. The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do.
[60] [2019] FCAFC 185 at [79].
In considering whether or not to depart from the relative ascription of weight for which cl 8(4) “generally” provides for this consideration the Tribunal is mindful of the nature and extent of the Applicant’s criminal offending. He was convicted of trafficking a prohibited drug in commercial quantities over a prolonged period. He demonstrated a willingness to become involved in a criminal undertaking for commercial gain and at the risk of injury to members of the community. This give rise to legitimate character concerns.
The Tribunal notes that the Direction recognises that a higher level of tolerance of criminal or other serious conduct may be afforded to a non-citizen who has lived in the Australian community for most of their life, or from a very young age. The Applicant was born in 1976. He came to Australia at the age of 21. He remained here unlawfully for over 10 years and then returned to Vietnam for almost four years. Since his return to Australia in 2012, the Applicant has been in prison for the majority of the time. In these circumstances the Tribunal is not satisfied that the Applicant warrants the higher level of tolerance that the Direction indicates may be afforded.
Having regard to these matters the Tribunal finds that the expectations of the Australian community, as a primary consideration under the Direction, weighs substantially in favour of not revoking the Applicant’s visa cancellation.
Factors in favour of Revocation
The considerations weighing in favour of revocation are relatively weak.
As a primary consideration, the interests of the Applicant’s two children does weigh in favour of revocation but the weight to be given to this consideration is limited due to the lack of any real evidence that the continued presence of the Applicant in Australia is in the interests of either of his daughters. In the absence of any objective evidence, the Tribunal is pressed to rely on the general proposition that it is usually in the best interests of a child to have physical contact with their parents. In this case, that proposition is unsupported by actual evidence and is subject to some doubt because of the existence of evidence, albeit in some cases not fully tested, which indicates that the best interests of the children may not necessarily be served by the Applicant remaining in Australia.
Of the other considerations, the Applicant’s ties to Australia warrant some consideration but for reasons set out above they carry little weight. Similarly, the possibility that the Applicant’s period of incarceration may be extended if revocation is not granted does favour revocation but for the reasons discussed it attracts limited weight.
In the Tribunal’s assessment, there are no significant impediments to the Applicant establishing his life in Vietnam which would weigh in favour of revocation. The other considerations listed in Paragraph 14 of Part C of the Direction are not relevant.
Conclusion
Subparagraphs 8(3) to (5) of the Direction provide:
1) (3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
...Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
Justice Colvin’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.
Weighing up each of these factors and taking account of the fact that the two factors against revocation are primary considerations, the Tribunal is not satisfied, on balance, that there is another reason why the mandatory cancellation of the Applicant’s Class BC (Subclass 100) Spouse visa should be revoked.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 154 (one hundred and fifty-four) paragraphs are a true copy of the reasons for the decision herein of Member R West
........................[sgd]................................................
Associate
Dated: 4 November 2020
Dates of hearing: 21, 22, 23 and 27 November 2020 Counsel for the Applicant: Tanya Skvortsova Solicitors for the Respondent: MILLS OAKLEY LAWYERS
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