Lam and Minister for Home Affairs (Migration)
[2018] AATA 2005
•2 July 2018
Lam and Minister for Home Affairs (Migration) [2018] AATA 2005 (2 July 2018)
Division:GENERAL DIVISION
File Number(s): 2018/1876
Re:Mr Le Vu Lam
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Ms Anna Burke, Member
Date:2 July 2018
Place:Melbourne
The Tribunal affirms the decision of the delegate of the Minister dated 9 April 2018 not to revoke the decision made on 17 February 2017 to cancel Mr Lam’s Class BB Subclass 155 Five Year Resident Return Visa
[sgd]........................................................................
Ms Anna Burke, Member
Catchwords
MIGRATION –– Vietnamese citizen – non-revocation of mandatory cancellation of visa – 12 month term of imprisonment – applicant does not pass character test in s 501(6)(a) – applicant an unacceptable risk to the Australian community – strong ties to Australia – impediments if applicant removed – decision under review affirmedLegislation
Migration Act 1958 (Cth); ss 499, 500, 501, 501CA
Migration Regulations 1994 (Cth); reg 2.52
Cases
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583Secondary Materials
Minister for Immigration and Border Protection (Cth), Ministerial Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014
REASONS FOR DECISION
Ms Anna Burke, Member
2 July 2018
BACKGROUND
On 17 February 2017 a delegate of the Minister for Immigration and Border Protection (the Minister) cancelled Mr Le Vu Lam’s Class BB Subclass 155 Five Year Resident Return Visa under s 501(3A) of the Migration Act 1958 (Cth) (the Act). This was a mandatory cancellation as the delegate was satisfied Mr Lam did not pass the character test because of the operation of s 501(6)(a) of the Act. This cancellation was on the basis of s 501(7)(c) of the Act as he was found to have a substantial criminal record by virtue of a 15-month term of imprisonment he had received on 9 February 2017 and was serving a sentence of imprisonment on a full time basis. A notice dated 17 February 2017 was sent to Mr Lam outlining the mandatory cancellation of his visa and inviting him to make representations to the Minister about the revocation of the mandatory cancellation (see ss 501CA(3)(b) & 501CA(4)(a) of the Act).
On 1 March 2017 Mr Lam lodged an application under s 501CA(4) seeking revocation of the decision to cancel his visa. On 9 April 2018 a delegate of the Minister made a decision not to revoke the mandatory cancellation of Mr Lam’s visa because the delegate was not satisfied that Mr Lam passed the character test and there was no reason why the original decision should be revoked.
On 11 April 2018 the Administrative Appeals Tribunal (the Tribunal) received an application from Mr Lam for a review of the delegate’s decision. At the time, Mr Lam was being held at Yongah Hill Immigration Detention Centre in Perth. He was subsequently transferred to Maribyrnong Immigration Detention Centre to facilitate his attendance at the hearing of his application in Melbourne. Mr Lam was self-represented at the hearing and Mr Chris Brinley, solicitor from Clayton Utz, appeared for the Minister. The Minister lodged a set of paginated G-Documents and the applicant provided a number of written statements to support oral evidence provided by himself, Mrs Tam Nguyen (Mr Lam’s mother) and Ms Ngoc Kim Do (Mr Lam’s sister). Documents received under summons from Victoria Police were also accepted into evidence. The hearing was assisted by Ms Kim Hoang an interpreter in the Vietnamese language.
Mr Le Vu Lam is a 32 year-old Vietnamese national who migrated to Australia as a 17 year-old in 2004 sponsored by his mother. Mr Lam was raised by his maternal grandparents in Vietnam, as his mother had migrated to Australia when he was three years old, having remarried. His mother’s husband had advised her it was best to migrate to Australia without her son and they would sponsor him at a later stage. His mother waited for several years for her husband to sponsor her son but as this never eventuated she separated from her husband and sponsored her son to Australia. Mr Lam’s father was in a detoxification centre and unable to care for him and subsequently passed away.
Mr Lam lived with his mother and sister when he first arrived in Australia but this arrangement broke down as he struggled to adapt to life in Australia and finally being part of the family unit which he had not been for the majority of his childhood. Mr Lam commenced using illicit drugs around the time he left his mother’s home in 2013, most particularly “ice”, and was a daily user until he went to prison in 2017. Mr Lam claims all drug tests since he has been in prison have returned negative results and he has stopped using all drugs and even given up smoking.
Mr Lam attended Braybrook English language Centre for six months after his arrival and then commenced full-time employment in various jobs in restaurants, labouring, factories and farms. He also undertook further study, completing a Certificate 3 and 4 in English at RMIT University in Brunswick and Melbourne City campuses.
During this period Mr Lam has made numerous visits to Vietnam.
ISSUES
There are two central issues before the Tribunal in this application for review:
(a)does Mr Lam pass the character test in s 501of the Act?; and
(b)if Mr Lam does not pass the character test, should the Tribunal exercise its discretion to revoke the visa?
LEGAL FRAMEWORK
With regard to the mandatory cancellation of visas, s 501 of the Act relevantly states that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
…
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)…
...
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more
With regard to the revocation of mandatory cancellations under s 501(3A), s 501CA relevantly provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information;
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(5)If the Minister revokes the original decision, the original decision is taken not to have been made.
…
If Mr Lam does not pass the character test, it must be determined whether there is another reason to revoke the visa cancellation under s 501CA(4)(b)(ii) of the Act. It has been determined by North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at 345 that:
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. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. ...
Guidance in determining whether it is appropriate to revoke a mandatory cancellation can be found in Ministerial Direction 65 (the Direction). Section 499(2A) of the Act mandates that the Tribunal must comply with the Direction (see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J).
Paragraph 6.1 of the Direction states the objectives of the Act and the Direction, stating, in part:
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers performing functions of exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 6.2 of the Direction sets out General Guidance relating to the Government’s intent:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding… whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in… making a revocation decision are identified in Part C of this Direction.
The principles referred to in paragraph 6.2 of the Direction and reproduced below, constitute a framework within which decision-makers apply the considerations in Part C of the Direction. Those principles in Paragraph 6.3 of the Direction are:
(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 vulnerable members of the community such as minors, 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 a 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.
Paragraph 7.1(b) of the Direction states that a decision-maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8(1) of the Direction explains that the considerations in Part A and Part C for existing visa holders and in Part B for visa applicants are different:
…Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
Paragraph 13(2) outlines the primary considerations under Part C of the Direction:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Other considerations that must be taken into account, where relevant, are outlined in paragraph 14(1) of the Direction. Those considerations 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;
e)Extent of impediments if removed.
Paragraphs 13.1-13.3 and 14.1-14.5 further elaborate on the primary and other considerations respectively; and the relevant portions of those paragraphs are outlined under the CONSIDERATION heading of these reasons for decision. Finally, paragraph 8(4) of the Direction states that primary considerations should generally be given more weight than the other considerations. Paragraph 8(5) also states that one or more primary considerations may outweigh other primary considerations.
EVIDENCE
Mr Lam’s criminal offending
The following table has been derived from the National Police Certificates dated 22 February 2017.
COURT
COURT DATE
OFFENCE
COURT RESULT
Melbourne County Court
11 Nov 2008
Recklessly Cause serious Injury
unlawful assault
possesses controlled weapon without excuse
deal property suspected proceed of crimeAggregated 6 months imprisonment sentence suspended for 12 months under section 27 of the Sentencing Act 1991 (Vic)
Sunshine Magistrates Court
25 Feb 2009
Drive whilst disqualified
One month imprisonment concurrent
sentence is wholly suspended under section 27 of the Sentencing Act 1991 (Vic)
operational period is 12 monthsSunshine Magistrates Court
7 Oct 2013
Unlicensed driving
failed to answer bail
granted(2 charges)with conviction, adjourn to 06/10/2015
Sunshine Magistrates Court
12 Aug 2015
Contravene family violence intervention order
possesses anything without police authority goalWith conviction fined an aggregate of $1000.00 with $117.00 statutory costs
Sunshine Magistrates Court
12 Aug 2015
Possesses heroine
possesses cocaine
possesses
methylamphetamine
possesses amphetamineOn each charge with conviction, find an aggregate of $1000.00 with $117.00 statutory costs
Melbourne Magistrates Court
16 Nov 2015
Unlawful assault
fail to answer bail grantedProven and dismissed
dismissed under section 76 Sentencing Act 1991 (Vic)Sunshine Magistrates Court
16 May 2016
Recklessly cause injury make threats to kill
Aggregated 43 days imprisonment concurrent
convicted and community corrections order for 15 months unpaid community work performed 125 hours of community workMelbourne Magistrates Court
9 Feb 2017
Intentionally cause injury
Contravene community correction order
15 months imprisonment concurrent
proven
Mr Lam’s offending commenced in 2005 when he was 21 years of age, and has escalated until his most serious offending in 2017, for which he received a custodial sentence of 15 months with a non-parole period of eight months. This resulted in Mr Lam’s visa being mandatorily cancelled whilst he was serving this sentence.
The respondent went to great lengths to ensure that Mr Lam agreed that the numerous statements he had provided to the Minister and the Tribunal were true and correct. The respondent was referring to a statement from Mr Lam dated 21 March 2018 and his personal circumstances form dated 1 March 2017. The respondent sought to ascertain that Mr Lam considered they were an accurate translation of the material he wished to rely upon before the Tribunal. Mr Lam advised the hearing that the documents were true and correct.
Mr Lam advised the Tribunal he prepared a statement to the Minister dated 21 March 2018 (the Statement) for consideration of the possible revocation of the decision to cancel his Visa. Mr Lam has had no legal representation throughout the process and prepared the statement with the support of his case officer in the prison system and relied upon their guidance that the statement should seek to explain his actions. Mr Lam told the Tribunal he had not gone into all details of all the incidents as these matters were clearly outlined in the police statements which the decision-makers looking at his case had had access to. Mr Lam did not believe he was required to reiterate these events but said his statement was his attempt to explain his actions and to outline his remorse and understanding of the harm he had caused. In the statement Mr Lam attempted to recall and explain the matters listed in the National Police Certificate, the offences for which he had been charged and convicted.
Mr Lam’s first conviction relates to a matter which occurred in October 2005, not long after he had arrived in Australia, the incidence summary report from Victoria Police provides the following case progress narrative:
…. 2 male victims walking east along Taylors Road St Albans when two males Lam and… Have exited a Lancer black and confronted over some slight they have them assaulted the two victims with machetes causing injury to the right arm of one victim. Observed by a unmarked Traffic Management Unit unit and arrested. Also located a quantity of cash and drug paraphernalia in vehicle.
In the Statement he described the incident in 2005 at length stating:
One day in 2005, when I was coming home from work, I was stopped by a gang of men who intentionally picked a quarrel with me. Although my English was not good at the time, I showed my gesture of goodwill and tried to speak to them in nice words so as to avoid bad things that may occur. However, those men were so radical. Perhaps they had used some stimulants such as wine or beer before that. They said offensive words to me and my friend. In order to defend ourselves, we engaged ourselves in a fight with them.
This matter was examined by the Victorian Police and I was requested to appear before a Court for it. However, as it was not my fault in that incident I was very busy with my work; I had to work to earn money to support my family’s living expenses, I negligently forgot the date of the Court’s hearing. As my English was not so good, I did not read carefully the letter the police had sent me, my Court’s hearing date passed.
In 2008, after I return to Australia from my holiday trip in Vietnam, the police had requested me to go to Court again for a hearing on the incident in 2005. However, due to the simplicity of the case where there was no evidence and there were no witnesses, the police were present and examined it, and the requested the matter be brought to Court for hearing. The incident was not clear and the concern persons were not present at the Court. And as it was the first time I committed an offence, the Judge said: “We do know who was the person who caused the incident”. Therefore, with the police’s accusation, the Melbourne County Court sentenced me to 12 months’ probation.
The respondent contended that Mr Lam statement about this incident was completely misleading and was an attempting to downplay the seriousness of this event. Mr Lam disputed this and stated that his recollection of the events was different to that recorded by the police. He recalled that after work he and his friend had been in the car; they had parked it, and had been walking down the road when they had been verbally assaulted. He had unfortunately lost control of his anger, took the weapon from his friend and had committed the offence.
Summons material requested by the respondent in this matter indicates that on 6 May 2013 Mr Lam was involved in an incident with his sister. He was not charged as his sister signed a statement of no complaint at the time of the incident, as she did not wish to proceed with the unlawful assault matter and a 12-month intervention order was issued against Mr Lam. The police report states:
The AFM returned home from university and her mum and brother were present. The AFM has gone to her mother’s room and then her brother the respondent has called out to her wanting to use her mobile phone and laptop. The AFM has refused to let him stating that she needed it for home work. The respondent has then entered the bedroom where the AFM was and started verbally abusing her. The respondent has then gone to the AFM and pushed her on the forehead with palm of his hand. The AFM has tried to call her father who does not live at the address. The respondent has questioned what the AFM was doing and when the AFM has not respondent the respondent has hit the AFM two more times across the left side of the head. The AFM has then got off the bed and walked to her room. The AFM has had her mobile and the respondent has grabbed the mobile from her to see who the AFM was calling. The respondent has verbally abuse the AFM and then hit her again across the left side of the head. The AFM has then taken the laptop and charger. The AFM has then run into the mum’s bedroom and to get the home phone from the bathroom. The respondent has followed the AFM and grabbed the mobile from her and kicked the AFM in the thigh hip area causing her to fall against the towel rail. The respondent then hit the AFM on the side of the head. The respondent and went downstairs and the AFM called a friend and went to a father’s house. Police have fears for the AFM although she will be staying at the father’s house. The AFM is in fear of the respondent and did not know what the respondent was going to do to her.
12 month order granted at court on 8 May 2013 served on respondent on this date. Phone call to be made to AFM to ensure no further issues rang and spoke to AFM. Confirmed order in place and said she had had no contact from respondent - is very comfortable with order and living with her dad and nil issues.
Again the respondent highlighted the fact Mr Lam had not included this serious incident in his statement to the Minister and was attempting to mislead the Tribunal and play down the seriousness of his actions.
Mr Lam advised the Tribunal he did recall assaulting/hitting his sister but had not remembered it in detail, and that he was not attempting to downplay the fact he had caused serious harm to his sister in his statement to the Minister. He had relied upon his National Police Certificate to prompt him about the numerous offences that he had been involved in, and that he did mention the incidents with his mother and his sister in his statement. He was aware he had been given an intervention order in respect of his sister but he stated no one had explained completely the effects of the requirements of the order and his understanding was he was not to go near his sister for 12 months and therefore he believed he had complied with the order complete.
Summons material obtained by the respondent in this matter also indicates an assault on his mother. On 10 August 2014 Mr Lam and his mother both attended court where final orders were granted to not commit family violence for six months. The police report states:
The AFM and respond are mother and son respectively. They reside together in Braybrook. There are no other children present at the house. The respondent has recently started using methamphetamine on a regular basis and this drug use is causing the respondent to become increasingly erratic and aggressive towards the AFM. The respondent has used recently been using stand over tactics to try and force the AFM to collect money from the respondent associates for outstanding drug debts. Out of extreme fear the AFM has made several attempts to do this. However has been unsuccessful.
On Saturday, 16 August 2014 approximately 23:00 hours the respondent began yelling at the AFM. That she wasn’t trying hard enough to get money. The respondent then entered the AFM’s bedroom and started to push items from the top a chest of drawers on the ground. The respondent then puffed his chest out towards the AFM attempt to scare her. Whilst he was doing this, the AFM was very fearful that she would be hurt. Due to the proximity respondent body to the AFM, the AFM was pushed backwards multiple times. There are nil previous incidents recorder between the parties. There are nil other assaults recorded between the pair. The AFM states she believes the respondent is on an ice binge. Due to the level of fear held by the AFM, the AFM has sought alternative accommodation with her daughter. Police have serious concerns for the safety of the AFM, police are fearful the violence will escalate. Police have attended the address and were unable to locate the respondent.
In his statement Mr Lam refers to various arguments and violent actions against his mother and sister, he states:
Due to the disadvantages of my work and daily living (no car to drive, more pressures at work), my family had experienced financial hardship. My family had gone through a state of disorder, and it led to arguments between my mother and me and both of us were upset. I had said words that made my mother sad and angry. And I moved out to live alone.
During that time, I received help with money from my friends. I found and rented a bungalow to live and to go to work. It lessened my mother’s burdens. I was living alone without anyone by my side, no car to travel here and there and quarrelled with my family. Sometimes I used ICE to get away from my sadness. During that period of time, there were many occasions I could not control myself. Sometimes, I came back home to visit my mother and younger sister. Occasionally my mother and I said loud voices to each other because of a disagreement. There were times when I could not control myself and had violent action, so my mother and my younger sister were very scared, and she got the police to intervene. The police got me to the Sunshine Magistrates’ Court. I received a warning, got $1000 fine and had to pay a fee of $117.
And that time the Sunshine Magistrates’ Court also fined me $1,000 and got me to pay $117 Court fee because I had used a number of stimulants that were prohibited by the Australian law.
Again the respondent highlighted the fact Mr Lam had not included this serious incident in his statement to the Minister and was attempting to mislead the Tribunal and play down the seriousness of his actions.
Mr Lam indicated to the Tribunal that he had not been attempting to play down the incident with his mother and had in his statement indicated that on occasion he could not control himself and had acted violently against his mother and younger sister. His statement indicated they were very scared and had got the police to intervene. He refuted the respondent’s contention that he had only indicated he had used “loud voices” against his mother and he was cognisant of his actions against both his mother and sister and the harm he had caused. When asked about the police statement which indicated his mother had sought alternative accommodation with her daughter, he could not recall this as he was aware the terms of his intervention order prevented him from being in her house. This also seemed at odds with statements from his sister that she had been living with her father since the 2013 incident and her father would have nothing to do with her mother.
Mr Lam’s sixth offence involved an assault on his former girlfriend which took place on the 20 December 2015, the police instant summary report states:
The accused is the de facto Partner of the victim. On Sunday, 20 December 2015 approximately 1 AM the victim returned home at… The accused, who does not reside with the victim, was in her bedroom. The accused was upset with the victim as she had been out drinking, the accused has yelled at the victim and has grabbed around the throat, causing her to not be able to breathe. The victim was unable to call for help due to the constriction of her throat. The accused has told the victim if she yelled for help he would kill her come before punching her 3 to 4 times to the head. The victim has fled to the bedroom, the accused has thrown a chair at the victim as she exited the bedroom. The victim has then run downstairs and called 000. The accused has fled the address. The victim sustained bruising and swelling and a black eye from the assault. Police attended and observed the injury to the victims’ eye. The victim was conveyed to Sunshine police state station to provide a statement.
Mr Lam’s statement describes this incident in detail he state:
In 2015 I moved in to live with my girlfriend. I was young at that time and initially there were no problems. I also found a job and I worked to contribute to our daily living expenses.
…
There were days I had to work night shift (assisted to transport fruit and vegetables in Richmond Market). Sometimes, an acquaintance called me to do some work to earn extra money, and I always tried to take it. Outside my work hours, I went to church and temple every Sunday. When I had free time, I invited my friends out to play soccer and tennis, and participate in social activities. I worked hard here and there and I took all jobs so as to earn extra income for my living expenses, and to help my family and my girlfriend so we would be happy. However, my girlfriend had a problem during that time. She did not go to school and did not work either. She neglected me and went out overnight without telling me. It went on and on and I could no longer l put up with it, so I asked her about it. Instead of saying nice words to appease me, she yelled at me and said offensive words to me. On many occasions, she even asked me for money to go out.
Not only that my girlfriend did not listen to my advice, she also had unreasonable behaviour and actions. When I was at work, she went out for fun and she brought her friend’s home to drink and shout so that my neighbours had to complain to me. After those occasions, I tried to advise her against that in the hope that unhappy instance would not happen. It happened many times. I was very tired after work. I talk to her about that and she had offensive words to me. We quarrelled with each other and fighting happened when I got angry. My girlfriend went to the police to report it and after that I had to go to Court on 16 May 2015.
The incident happened because I was tired with my daily work and I was not happy when I got home. My girlfriend did not understand me. She did not share things with me and even had such actions. In the eye of the Australian law, I was at fault because of my bad behaviour towards a woman (but how many people would understand my situation at that time?). On the day of my Court’s hearing, my girlfriend was also present and she forgave me before the Court. But the police had charged me and the Sunshine Magistrates’ Court punished me with 43 days detention in prison. As I had already been detained for 43 days, the Court sentenced me to 15 months of community work. I did 125 hours at Quang Minh Temple in Braybrook. During that time, I was both doing community work to redeem my mistakes and looking for a job in restaurants and farms to earn a living. I went to the Government Employment Agencies to look for a suitable job so as to pay tax and contribute to Australia, and have a stable job for me. I told myself that I must try to become a good person who had a proper job…
The respondent contended that Mr Lam’s statement about this incident was completely misleading and was an attempt to downplay the seriousness of his actions. Indeed in this incident, the question Mr Lam posed “but how many people would understand my situation at the time?” The respondent argued seemed to imply that Mr Lam thought he had cause to hit his girlfriend.
Mr Lam is adamant that the police incident report was incorrect as he and his girlfriend had been living together at the time. Indeed they were sharing a room in a house with his mother. His mother explained in her testimony that her son and his girlfriend were living with her at the time. They had met through her as she was providing child minding to his girlfriend’s child. His mother also volunteered to the Tribunal that she did not like the girlfriend, as the pair had issues, were fighting all the time and acting like children.
Mr Lam said he had no recollection of sending a text threatening to kill his girlfriend after the incident. He remembered being in a fighting mood with his girlfriend and they both sent angry text messages to each other but he did not recall sending threatening texts to his girlfriend.
Mr Lam explained he had posed the question in his statement not because he believes assaulting women is acceptable. He stated he fully understood it was completely wrong and against Australian law to assault women. He said “I did hit her, I did not deny it, I was just trying to explain it and not excuse it - because couples have arguments and sometimes that leads to fights.” He accepted he had done a terrible thing but he was angry and jealous at the time as he had been working all day and she had been drinking and going out with other people. Mr Lam stated he posed the question so that people could see it through his eyes, so people would understand his situation.
Mr Lam was adamant he had not downplayed the severity of the matter nor was attempting to blame his girlfriend. He had admitted to it. He could not deny his actions it was clearly there in the police statement and he was not trying to blame her or anyone else. He said: “I am not a child anymore and I accept my responsibility.”
Following Mr Lam’s release from prison he was then involved in a serious incident with a co-tenant at his rental accommodation in Sunshine, a house where numerous rooms have been rented to many individuals. Mr Lam was subsequently convicted of intentionally causing injury and contravening his corrections orders and sentenced to 15 months imprisonment with a non-parole period of eight months. At sentencing, a summary of the incident was read to the court:
At the time of the offending, the accused and the victim were residing at …, above a takeaway shop.
The owner of the building… rented a number of rooms to different people including the victim and the accused. The victim shared a room with…. The accused had his own room adjacent to the kitchen. On 16 August 2016 at approximately 9 PM, the victim went to the bathroom to wash his face. At the time, the victim was moderately affected by alcohol, having had four to five drinks. The victim did not turn the bathroom light on while he was in the bathroom.
A short time later, the accused entered the bathroom and told the victim that he looked like a pig. The victim asked why he would call him a pig. The accused said the victim was drunk and they will discuss it tomorrow. The victim said, “you need to talk about that clearly,” and asked again why the accused had called him a pig. A short fistfight ensued. There were no injuries as a result of this. The victim then went to bed.
On 18 August 2016, the victim returned from work about 5:30 PM.., a friend of the owner of the property, was at the address with…, the owners son… had heard about the fight on 16 August and wanted to sort things out between the victim and the accused. The accused, the victim and… all sat around the kitchen table. The victim asked the accused why he had called him a pig in the bathroom. The accused said that it was because the victim was sharing a room with…, and he thought the victim was not paying rent.
The victim explained that he was paying rent and that in any case that was the owner’s business. The accused was not satisfied with his explanation, and the argument began to escalate. The victim and the accused both said that they would need to go outside to sort it out. Both men stood up to go downstairs. The accused walked round the table to an area which was behind the victim. The victim assumed he had walked away. Instead the accused grabbed a silver cooking knife which was on the kitchen bench.
The victim did not realise that the accused had a knife. He felt something hit his head, and he grabbed the accused. He felt two further hits to his head and put his left arm up to protect himself. The accused struck the victim with a knife on the arm. The victim saw that he was bleeding and realised that the accused had a knife. The victim tried to leave the kitchen, but the accused was still trying to cut him. The victim used his right hand to try and push the knife away from him.
… was yelling at the accused saying “stop it.” He also tried to grab the accused. The accused then stopped and went into his room, taking the knife with him. He did not say anything…. observed that the victim was bleeding a lot and the blood was dripping onto the floor. He took paper towel and applied pressure to the victim’s wounds… came out of his room and telephoned the police.
The accused came back into the kitchen and washed the knife in the kitchen sink. He also tried to clean up the blood. The accused said sorry to the victim and asked him tell the police that it had been an accident. The accused then left the house…
Mr Lam’s statement describes this incident in detail he state:
I was living in that house with other people, working and helping the temple during my 125 hours of voluntary community work. Overall, did not have any problems with other people who are living in the same house. Besides, they sympathised with me and understood my circumstances. However, there was one man who often indulged in drink, but I did not say anything because I respected his privacy (I only worked, rested and looked after myself). One day when I got home from work, I witnessed an incident that was illegal and morally wrong to me. That man was drinking with his friends in the kitchen. I went to my bedroom to lie down. Suddenly I heard the screams of a woman. And when the woman walked past my bedroom, I asked her “why did you scream? “She replied: “I just came out from the toilet and suddenly the other man who stood in the laundry (with lights off) rushed out to clasp me”. As a man, when I heard what she said, I felt that the other man had done an illegal and immoral thing. I felt discontented with such behaviour to women. I then called him and asked: “why did you do that?”.” You’re drunk now, so I don’t want to talk to you. Tomorrow when you are clean from alcohol, I will talk to you”. He did not let away and kept asking me what I wanted. However, I insistently told him that I did not want to talk to a person who was drunk. I found a reason and I asked him: “why we are standing in the laundry when all the lights were off like a thief?” He then picked a quarrel with me and used his head to tap on my head, and we started to fight. At the time, I rang the homeowner to report the incident and asked her to come and deal with it. He went into his bedroom. The homeowner was busy at that time, so she told me that she would come to talk to the man the next day.
In the afternoon the next day, when I got home from work, I went to my room and prepared the instant noodles to eat. The man got in front of my bedroom and called me out fight. He said: “I am now free of alcohol, come to exchange blows with me now if you want”. I told him: “I don’t want to fight you. I am in the period of re-educating myself, so I don’t want anything to happen. Whatever you want, I will phone the homeowner here to talk to us.” He did not let it go and kept calling me out to fight. I could not bear it, so I phoned the homeowner and asked her to come over. When the homeowner came and tried to mediate, the man kept using unpleasant words to defame me. I really felt tired and upset with his behaviour, so we continue to raise our voices with each other. He kept calling me out to fight. I did not want anything to happen inside the homeowner’s house, so I stood up and went outside with the man. When I stood up, I was really angry, so I became inconsiderate. I took a knife right at the kitchen and wounded him. Unfortunately, it happened. In fact, I did not really intend to do it. However I wounded another person because of my anger. I felt guilty and regret for not being able to control myself. Therefore, I knelt down, said sorry and asked him to forgive me. Unfortunately, the incident happened and during the time his room mate had already called the police. I really felt panic when I heard it, so went to my room, got dressed and went to my mother’s house so as to avoid further troubles.
I stayed in my mother’s house one day, thought of what I had done and listen to my mother’s advice. I had decided to give myself up to the police. In the next morning, I went to the Sunshine police station to present myself and report the incident to them.
In her sentencing remarks her honour stated:
In relation to the charge before the Court of intentionally causing injury on 16 August last year to…, it is properly conceded by Mr Hooper a serious example of that offence. I accept that there were tensions between the pair, but at the time of the attack on…, it was at a point in time where they were taking the matter outside, the attack was from behind, in my view, with a sharp weapon where he had limited ability to protect himself and indeed incurred a significant injury to his head as well is defensive wounds to his arms, and over not much at all. It’s quite a strong reaction to a fairly minor dispute.
……
I do accept that the offending was on a spur of the moment, and of course a discount must attach to the plea of guilty which came about in circumstances of negotiations between the prosecution and the defence.
The respondent again indicated the inconsistencies between Mr Lam’s representation of this offence and the police and court records.
Mr Lam did not dispute that this was a very serious offence and that he recalled it had arisen from an incident that occurred the night before where a woman had been violated. At the time of the incident he was not protecting a woman nor in fear of his life. He was aware that he did not want to risk breaching his community corrections order and that is why he had asked the homeowner to try and harmonise relations between himself and the victim. Mr Lam conceded he had overreacted. He was a man of hot temper; that he acted without thinking, and had not thought of the consequences. He had stopped the attack when asked and he did not agree that he had stabbed the victim from behind.
During Mr Lam’s time in prison and detention he has committed no offences or breaches of rules or regulations and he was released on parole after serving eight months.
CHARACTER TEST
The Minister argued that Mr Lam was not of good character within the meaning of ss 501(6)(a) and 501(7)(c) of the Act as he has a substantial criminal record of 12 months or more. The Tribunal finds that Mr Lam is not of good character as he has a substantial criminal record, having been sentenced to a total period of 15 months imprisonment, and due to his serious offending over many years which has been escalating in nature. Mr Lam therefore does not pass the character test under s 501(6)(a).
THE DISCRETION
As Mr Lam does not pass the character test, the Tribunal must consider whether it should exercise its discretion to revoke the decision cancelling Mr Lam’s visa under s 501CA(4) of the Act. In doing so, it must have regard to the relevant primary and other considerations within Part C of the Direction which are applicable.
Part C begins with three considerations that are characterised as primary considerations: the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in paragraph 13 of the Direction.
PRIMARY CONSIDERATIONS
Protection of the Australian community
The first primary consideration relating to the protection of the Australian community begins with the general statement:
“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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is determined.”
That statement makes clear that the person’s conduct, past and future, is relevant. That is stated expressly in paragraph 13.1(2), when decision-makers are told that they:
“… 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
Paragraph 13.1.1 goes on to expand on the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
“a) The principle that, without limiting the range of offences that may be considered serious, violent and/ or sexual crimes are viewed very seriously;
b) The principle that crimes committed against vulnerable members of the community (such as minors, 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;
c) The sentence imposed by the courts for a crime or crimes;
d) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e) The cumulative effect of repeat offending;
f) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
g) 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);
h) Where the non-citizen is in Australia, that a crime committed while the non- citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;”.
The respondent argued that Mr Lam’s criminal conduct in Australia to date was repetitive and very serious. That the nature and seriousness of Mr Lam’s offending was demonstrated by his offences:
·having been committed over a long period of time between February 2007 and February 2017;
·resulting in him appearing before a court on at least seven occasions and having been charged with at least 17 criminal offences;
·at least three of which offences had involve serious physical assaults perpetrated against people in a domestic context and at least one other offence involved serious violent conduct;
·which have seen him inflict serious physical injury upon women in a domestic setting on numerous occasions;
·escalating in a pattern of reoffending which was indicative of his high risk of reoffending, demonstrating that the threat of imprisonment has not deterred him from repeatedly committing criminal offences of increasing seriousness; and
·resulting in a serious sentence imposed on him by the Court.
In Mr Lam’s statement he seeks forgiveness from the Australian public and to be given a second chance to stay in Australia, he pleads:
During my jail term, I have had the time to think of all my careless actions in the past years. I am very lucky to live in this free and multicultural Australia. This peaceful, socially inclusive and humanitarian country has received unlucky individuals such as my family. My mother and my younger sister have been separated for a long time and I was very lucky to be able to reunite with them because the humanitarian policy of the Australian Government. This country has a firm social foundation whereby human dignity is respected. Through the incident I got involved, my careless actions and lack of self-control, I have recognised the right and the wrong things, and I really feel regret for what I have done. I have learnt from this experience will try not to let a similar incident like it to happened again in my life in the future.
As for me, during my childhood, I had not received the care that a child deserved to have. Therefore, all my actions in the past result of my carelessness and lack of thought.
It was not until 2004 that I had a chance to be reunited with my family. However, as I had just come to Australia after long time of separation, my mother and I had disagreed with each other on many things. My mother was trying to take care of me and my younger sister while I did not want to make it difficult for her. Therefore, I left school and went out to look for a job are no money. As a school leaver, I had shown my lack of thought and carelessness. I had not seen all the good things that Australia brought to my family. Therefore, I had done the bad things that I would have been able to avoid.
Australia is a humanitarian country. It has freedom a legal system where everyone is equal.
Through the incident that I got involved and the time I have served my sentence for my mistakes, I really feel regret for what I did. With the humanity the Australian people and the Australian Government, which had received my family; and with my regret, I urge your forgiveness and acceptance for me to get back to the community. Please give me one last chance to make new life for myself and to become a decent citizen for society and Australia.
Please understand my family circumstances and sympathise with me. Please forgive me for my wrongdoing, which I have already repaid for and have been restrained by the Australian law.
I wish to be welcomed back to the humanitarian hands of the Australian Government and its people. I will not let another incident like that to happen again in the future. And I promise that I will not do anything contrary to law. I will try to become a good person and a decent citizen who contributes to the community and the Australian society, which I have the luck of living in it.
I know that my petition does not have much hope. But I believe that Australia will receive me back with its open arms, as it is a humanitarian country. It will give me one last chance to restart my life to become a good and useful person for the Australian multicultural society.
And I can turn back to become a good person, a dutiful child to my family and my mother who really loves me. Although I have made so many mistakes, I ask you to forgive me and allow me to come back to my family.
In exploring the nature and seriousness of Mr Lam’s offending, his sister Ms Ngoc Kim Do explained to the Tribunal the impact of her brothers offending on herself. She explained that she had been traumatised by the experience with her brother in 2013 and that her father insisted she returned to live with him on a full-time basis and she has lived with him since. She said she did not speak to her mother or brother for quite some time after the incident as she was traumatised by the events. She had never experienced anything like that; “someone I grew up with became someone else, he had never treated me like that ever, I needed time to get away to gather myself together”. She explained she had not wanted her brother charged but had taken out a restraining order.
She explained her brother had apologised for his actions. That they had been estranged for quite some time but that they had reconnected over their mother’s illness. Her brother had been constantly in touch telephoning to ascertain how his mother was and to give her emotional support over the telephone. She understands that her brother has a short temper but she thinks that he will manage that now he is not on drugs, as that was the basis of all his offending and he has now changed dramatically as he is drug-free.
Mr Lam has persistently disregarded Australia’s laws and his lengthy offending history since 2005 is objectively serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2 of Direction No. 65 states:
“(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) 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 the rehabilitative courses to be undertaken).”
The respondent argued that Mr Lam’s pattern of criminal and other serious conduct showed an escalation in the nature and seriousness of his conduct, as well as a persistent failure to manage his own behaviour. He contended that in circumstances where Mr Lam has a serious criminal history and where there is no evidence of his participating in any treatment or rehabilitation programs, that there is a high risk that he will reoffend and he presents an unacceptable risk to the Australian community. Further, he contended that the nature of the harm to individuals or the Australian community should Mr Lam engage in further criminal activity of the kind which he has previously engaged, particularly violence involving weapons or against domestic partners, would result in very serious physical and/or psychological injury on individuals and may involve death. Therefore, he submitted that such harm would be considered to be extremely serious and unacceptable to the Australia community and weighted heavily in favour of revoking Mr Lam’s visa.
In her sentencing remarks Her Honour stated:
Of course for Mr Lam, he was already on a corrections order for violence at the time. It would appear he had been noncompliant with that corrections order which was designed to assist him. He spent 43 days in custody in relation to that violence, in combination with the prior matter, the serious injury in 2007, it does give the court the impression that he is a man of violence and he has somewhat guarded prospects for rehabilitation.
The prosecution is right in that attention must be paid to the principle of general deterrence that is sending a message into the community that violence is not accepted, particularly in this context. There is a clear need for specific deterrence, that is teaching Mr Lam that the courts will punish for this kind of offending with a view to putting off offending in this way again, and in this context and in combination with his history, there is a need for both denunciation and to consider the protection of the community.
By way of closing remarks Ms Ngoc Kim Do representing her brother address the likelihood of her brother re-offending and told the Tribunal:
We simply cannot afford legal representation, firstly my brother grew up with no role model in his life, he was raised by his grandparents, he got caught up in the wrong crowd, he fell into depression he has made it clear he took full responsibility for his actions, he understand what he did was wrong, he hopes Australia can forgive him he is extremely shameful of his actions against women he wants to change that.
In terms of reoffending, he has a low chance of reoffending. His time in prison and detention centre life is harsh there it would had been easy to reoffend and he has shown that in this time that he has not reoffended. He has not got into fights or trouble with anyone there he has learnt from his actions he will no longer reoffend. He will not return to drugs which he has no taste for any more. You can tell that all the crimes he committed were drug induced. Chance of him turning back to it is very low. He is not taking anything since he went into prison. He attempted to seek rehab and counselling whilst in prison but was advised that there were no programs offered in Vietnamese and it would be pointless to undertake English course as he did not have enough language skills to appreciate what was being discussed. Feels very privileged to have lived in Australia.
In assessing the competing views relating to Mr Lam’s risk of reoffending it should be acknowledged that a person who has committed offences always presents some risk that they will do so again. Mr Lam’s offences were committed during a period of great personal turmoil while he was influenced by his drug addiction. However his offending was of an escalating nature, getting more violent and erratic over time, was committed against vulnerable members of the community as described in the direction and did not abate when he was placed under intervention orders, community correction orders or after his first period of imprisonment.
Whilst the Australian community expects that people will be given a chance to redeem themselves and that prison offers a chance for rehabilitation, they have a low tolerance for individuals who show no respect for our laws and values. Mr Lam has shown exemplar behaviour since being in prison and detention but has not had the opportunity to be tested in the wider community. On one hand, it does appear Mr Lam has matured and turned the corner and poses a low risk of reoffending, but on the other hand, his record of reoffending speaks for itself. There is a conflicting position in respect of Mr Lam’s prospect of reoffending and as such the risk to the Australian community of his likelihood to reoffend is too great.
Having regard to the nature and seriousness of Mr Lam’s conduct as well as the significant risk he poses to the Australian community should he re-offend, the primary consideration of the protection of the Australian community weighs very heavily against revoking the mandatory cancellation decision.
Best interests of minor children in Australia affected by the decision
Paragraph 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the bests interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made. In considering the best interests of the child, paragraph 13.2(4) provides:
“In considering the best interests of the child, the following factors must be considered where relevant:
a) The nature and the 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 the 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.”
Mr Lam indicated to the Tribunal that he is not a father nor does he have any parental responsibilities of any minor children in Australia and as such this consideration is not relevant to Mr Lam circumstances.
Expectations of the Australian community
Paragraph 13.3(1) states:
“The Australian community expects non-citizens to obey Australia’s 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.”
The respondent argued that the Australian community would not expect Mr Lam to be granted a visa to remain in Australia and this consideration weighed heavily in favour of refusing the visa. In his submissions he outlined several factors which he contended demonstrates the Australian community would not expect Mr Lam to be able to remain in Australia. He contended the Australian community would have regard to the fact:
· that since his first offence, which he committed shortly after he arrived in Australia on a permanent basis, Mr Lam has been charged with at least 17 criminal offences;
· tin the criminal matter for which he was convicted on 9 February 2017, Mr Lam inflicted serious physical injury upon a person who had their back turned and utilised a dangerous weapon. Further, this was his third such offence of a violent nature, often perpetrated in domestic setting;
· Mr Lam has a propensity to blame his victims and shows little insight, remorse or understanding of the seriousness of his crimes; and
· Mr Lam has not demonstrated the risk of him reoffending is low. In this context, the Minister notes that Mr Lam has not provided any evidence that he has attended any rehabilitation for drugs and anger issues and was formally warned about a lengthy period of incarceration if his violent behaviour escalated.
The Minister strongly contended that the Australian community would expect Mr Lam not to be given the right to remain in Australia. The respondent highlighted that the community rightly expects non-citizens to obey the laws of Australia and respect their institutions. It was submitted that Mr Lam’s history of serious repeated offending was fundamentally incompatible with the values and expectations of the Australian community. They contended that while the Australian community may show greater tolerance in relation to a person who arrived in Australia as young person, that tolerance is not boundless. In light of Mr Lam’s history of repeated offending, the Minister submitted the Australian community will be of the view that Mr Lam’s visa should be cancelled given the nature, seriousness and impact of his criminal conduct and his lack of respect for our judicial institutions.
Members of the community, apprised of the facts of this case, may not expect cancellation of Mr Lam’s visa. Particularly given that he arrived in Australia at a young age and has now lived here for half his life. It was also necessary to consider the devastating impact his removal will have on his family. However, this had to be tempered by the fact Mr Lam has caused serious harm to members of the community, most significantly women; indeed the very family members pleading with the Tribunal to allow him to stay in Australia. In this regard, reliance is placed on the view expressed by Deputy President Block in regard to the term expectations of the Australian community (as it appeared in an earlier Ministerial Direction) in Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 at [7]:
It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into the Australian community, knowledge of the evidence before me. …
In the more recent decision of Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999, Deputy President Forgie noted that determining the expectations of the Australian community is “…ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence…” (at [72]). In assessing the expectations of the Australian community, regard should also be had to the principles in paragraph 6.3 of the Direction as they reflect community values and standards (para 6.2(1)).
Again, as the applicant was unrepresented the Tribunal turned to Ayache and Minister for Immigration and Border Protection (Migration) [2018] AATA 310 (22 February 2018) to explore the proposition that the Tribunal should have regard to the expectations referred to in the direction espoused by the government, rather than any objective expectation put forward by an applicant. Deputy President Forgie states:
70. In view of these principles, it seems to me that I should be guided by the words of paragraph 11.3 in the immediate context of Direction No. 65 and in the broader context of s 501(1). When that is done, there can be no inevitable outcome. That said, how are the expectations of the Australian community to be evaluated? This was addressed by the Tribunal in Re Visa Cancellation Applicant and Minister for Immigration and Citizenship:
“ Relevant community values will not depend on transient or fashionable thinking. They will not be found in the publications of vocal minorities or the fulminations of the media, motivated by short term considerations and the improvement of circulation or ratings. They will not necessarily reflect the views of individual politicians. Community standards will be found in more permanent values. They will be informed in part by legislation of the parliaments, and especially legislation applicable to the decision-making. Formal statements by ministers will be relevant, but not when they are not speaking officially or when their remarks are not carefully considered or do not appear to reflect ‘a broad consensus of opinion’ (Mason, Courts and Public Opinion at 36). Decisions will also be informed by the decision-maker’s belief based on experience. Evidence will rarely be of any practical assistance.
It will often be impossible for decision-makers to articulate the basis for their determination of what community standards require in a particular case, because the conclusion will not be based on evidence. Nevertheless, decision-makers are members of the community and exposed to the processes of its instrumentalities. They may not always be able to empathise with particular individuals or groups, because of lack of exposure to local considerations, but they are exposed to the short term and long term thinking and dissemination of ideas which determine the way society changes and develops.
Drawing on these considerations, even without detailed analysis of them, in reasons for decision, will lead to better formed judgments which more truly reflect community standards. An assessment expressed to be guided by community standards or values, without more, will still be likely to lead to better decision-making than if no attempt at such an assessment is made. Expressing an opinion that current community standards require a particular outcome will be likely to represent a better decision than one couched in personal terms. Such an approach will sometimes lend itself to reasons. Where there are no reasons, however, the decision and the basis for it will still be better expressed than with reasons couched in personal belief.”
71. Although I respectfully suggest that it is implicit in the passage, I think that it should be expressly stated that the task described by the Tribunal is carried out in the context of, in this case, making a decision under s 501(1) of the Migration Act. Therefore, s 501(1) becomes the starting point for identifying those of the Australian community’s expectations that will be relevant. It is the starting point because a decision-maker is under an obligation first to determine the limits of a discretionary power by reference to the subject-matter, scope and purpose of the legislation granting the power to make that discretionary decision. In other words:
“... the law obliges the Minister, in the particular case, to reach a decision on the merits of that case by reference only to considerations that are relevant to the grant of power and compatibly with the exercise of that power with respect to an individual. ...”
72. The purpose of the Migration Act is to regulate those who may come to and those who may remain in Australia and the circumstances in which they may do so. There are various types of visa, some of which permit a person to remain on a temporary basis and others which permit a person to remain permanently. Parliament has decided that those who have committed offences attracting certain penalties may be refused a visa or have a visa cancelled and, in some instances, must be refused a visa or have a visa cancelled. Against that background, the Minister has developed considerations in the Direction that are consistent with the Migration Act’s subject-matter, scope and purpose.
73. Consistently with the Migration Act, the heart of the Direction is the protection of the Australian community and its institutions. That is reflected in the considerations set out by the Minister for decision-makers exercising one of the three types of discretion dealt with more fully in Parts A, B and C. It is also reflected in paragraph 6 of the Direction when it sets out the Objectives, General Guidance and Principles all of which underpin the exercise of the particular discretions that are the subject of Parts A, B and C. It is to this paragraph that regard is to be had in determining the matters that underpin and inform paragraph 11.3 when it addresses the expectations of the Australian community in the context of considering whether to exercise the power to refuse a visa. In particular, it underpins and informs when it may be appropriate to revoke the mandatory visa cancellation or when the Australian community would expect that the person should not hold a visa.
The Direction at 6.3 clearly states 'Australians 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.' This needs to be balanced against the sustained and serious nature of Mr Lam's offending, which commenced not long after he arrived in Australia, and has continued for approximately ten years to date. The evidence supports a finding that the primary consideration of expectations of the Australian community weighs heavily in favour of revocation of the decision to cancel Mr Lam’s visa under s 501CA(4) of the Act.
Other considerations
The five other considerations are summarised in paragraph 14(1) of the Direction:
“a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.”
A. Non-refoulement obligation
Paragraph 12.1 of the Direction provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called 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 reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act
The respondent argued this consideration was not enlivened by the evidence before the Tribunal and that an assessment of this consideration was not necessary in Mr Lam’s circumstances.
A non-refoulement obligation is an obligation not to require a person to return, deport or expel a person to a place where he or she will be at risk of a specific type of harm. There is no suggestion that Mr Lam is at risk of harm of the sort that raises Australia’s non- refoulement obligations under the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol i.e. the Refugee’s Convention. Therefore, this consideration does not arise on the evidence in this case.
B. Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No. 65 states:
“… 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 has 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 respondent argued that less weight should be placed on the time that Mr Lam has resided in Australia, as his first offence occurred soon after he arrived in Australia, and he has frequently left Australia to spend large periods of time in Vietnam. Further, he argued that there was limited evidence of Mr Lam’s employment history in Australia or of his positive contribution to the community. He therefore argued the Tribunal cannot be satisfied that Mr Lam has made any significant positive contribution to the Australian community.
However, the respondent did acknowledge that Mr Lam has significant family ties to Australia, in particular his mother, who has been diagnosed with a brain tumour and the Minister recognises that if the decision to cancel Mr Lam’s visa was affirmed he would not be able to provide his sister with the support in her primary role as carer for their mother. The Minister contended that this consideration weighs slightly in favour of revoking the decision to cancel Mr Lam’s visa.
Mr Lam’s sister, Ms Ngoc Kim Do, provided a statement to the Tribunal in which she outlines the genuine need of her family to have Mr Lam remain in Australia. She states:
Growing up my brother and I were very close. He would always help me with my maths homework and I would return the favour assisting him with English subjects. Growing up he always motivated me with my studies, telling me to try my best to get into university and lead a better life than him. However, as we grew up my brother and I often had our ups and downs. I have not always agreed with his life decision and have been disappointed in him many times. I started to feel that I was the more mature child and always wished he could be the same. Despite this, the one thing that I cannot deny is my brother has a very big and caring heart. Regardless of his poor decisions in the past, he always has good intention and has tried to put his family first, trying to provide for and protect us.
Recently my relationship with my brother has changed dramatically. We have been in contact on a more regular basis and I’ve seen how much he has matured and change. At first I was sceptical, however, in light of my mother’s illness I’m now more sure than ever that he has changed. I truly believe he is going to turn his life around and make positive impact on the community, if he is given the chance to come back home. I also want to actively help him achieve this, by assisting him in finding his true passion helping apply for a stable job.
Additionally, it would mean so much to me if he was able to stay in Australia to help me look after my mother. I currently work full time and live at my father’s helping to raise my other half siblings who are 11 and 9 years old. My father and mother are divorced and not on speaking terms. In November 2017 my mother was diagnosed with a tumour in her brain and undertook surgery to remove it urgently in February 2018. This was one of the most difficult times of my life and throughout the whole ordeal I was alone and wish I had my brother by my side. I was forced to take weeks of work to be able to care for her and was so stressed I had constant insomnia and anxiety. Although my mother is back home I constantly worried everyday about her progress. Having my brother back home with my mother will really help me juggle all my commitments and provide me with peace of mind when I’m not there.
Mr Lam’s mother, Ms Tam Nguyen, provided a statement to the Tribunal in which she pleads to have her son remain in Australia. She states:
Vu’s father was passed away when he was very small and I lived with my son to educate him to be a good human until he was a little bit grown up and I left him be hide to my mum in Viet Nam and I remarried with a new husband, then I followed my new husband to come to Australia for my new life. When Vu lived with my mum, he changed his life so much as no one taught him how to do the right things, they just ignored him did whatever he want and I believe he didn’t even know what he did right or wrong…
I am appealing you to understand my situation and please giving Vu one more last an opportunity to stay back with his mum as I really need help from my son. I need my son to be next me for the rest of my last life. I really don’t want to be died lonely. I believe that Vu has learned this lesson and I also promise that I will teach Vu, how to become a good person to devote something good into Australian society.
I hope you will reconsider the decision of removing my son to come back to Viet Nam and please be able to give my son one more last chance to remain in Australia to stay with his mum while his mum is very ill now.
By way of closing remarks Ms Ngoc Kim Do representing her brother addressed the urgent and great need the family had for Mr Lam to remain in Australia:
She explained that their mother’s illness had been an enormous strain on her both emotionally and physically as she was the only one that is provide any support to her mother, as there are no other family members in Australia. She is working full time helping look after her younger brother and sister as her stepmother had very limited English and so she undertook many activities for her brother and sister such as parent teacher interviews, tutoring, swimming lesson and the like. She also assisted her father in his business. She been required to take a great deal of time off work to assist with her mother’s medical issues and whilst work was understanding she felt that it was having an impact upon her career.
Basically there was no one else around, her mum’s friends provided support such as cooking but that she said she would not trust them to assist her if something dramatic happened to her mother. She is fearful of her mother being on own and would like someone to be there with her as she fears that she may suffer further falls as she is still very weak. Her Mother is currently unable to look after herself such as doing housework or preparing meals, she can no longer drive and so she is constantly taking her mother to and from hospital visits which are still ongoing post the surgery. This will go on for quite some time and the prognosis from the brain tumour is unknown.
Ms Ngoc Kim Do would dearly love her brother to remain in Australia as an emotional and physical support - to assist her in the care of their mother. Ms Ngoc Kim Do has no one else she can seek support from in the care of her mother and she is finding it an enormous, physical and financial strain.
Mr Lam has long and enduring ties with Australia and it is clearly in Mr Lam’s family interest that he remains in Australia. It is evident by his past behaviour that he will be a significant support to his mother and sister, and that his mother’s current significant health issues and the burden these are placing on his sister would be greatly alleviated by Mr Lam remaining in Australia. Therefore this consideration weighs heavily in favour of revoking the decision to cancel Mr Lam’s visa under s 501CA(4) of the Act.
C. Impact on Australian business interests
Paragraph 14.3(1) of Direction No. 65 states:
“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 delivers an important service in Australia.”
The respondent argued this consideration was not enlivened by the evidence before the Tribunal, as Mr Lam is not involved in the delivery of a major project or delivering an important service in Australia nor has he ever been.
Mr Lam advised the Tribunal that prior to his incarceration he had always worked and taken whatever employment he could find to provide for himself and his family, and paid his taxes; and would again seek work to support himself and his family. Also that he wished to return to his studies to master the English language so he could obtain better paying and more permanent employment.
In light of the evidence, there will be no impact upon business interests in Australia should Mr Lam’s visa cancellation not be revoked and this consideration has no bearing upon the consideration of revoking the decision to cancel Mr Lam’s visa under s 501CA(4)of the Act.
D. Impact on victims
At paragraph 14.4(1), Direction No. 65 states:
“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.”
Several of Mr Lam’s victims have been females; most particular is mother, sister and ex-partner. Mr Lam advised that he has had no contact with his ex-partner since his incarceration and has cut off all contact with associates from his past. Both Mr Lam’s mother and sister gave oral evidence at the hearing that they believed he was a changed man and they had no fear of him. Both stressed Mr Lam had had difficulty adjusting to life in Australia and dealing with his issues of abandonment as a child and had turned to drugs to cope. Mr Lam’s mother indicated she would welcome him into her home and his sister stressed she would not have been at the hearing if she did not believe he had changed, as she had been scarred in the past by his drug fuelled violence.
The respondent indicated there was no direct evidence of the impact of a decision not to revoke the original decision on the victims of Mr Lam’s criminal offenses but noted the remarks of Magistrate Gwynn which indicated Mr Lam’s actions had had a significant adverse impact on his victim.
At sentencing, a summary of the incident of August 2016 was read to the court, including an outline of the injuries sustained by Mr Lam’s victim:
As a result of the injuries, the victim could not use his arm to lift heavy things. His work required him to leave 25 kg bags. Because he could no longer do this, the victim lost his job. He now has a new job in similar work, but his injury still causes him pain and still makes it hard for him to lift heavy things.
A witness statement from one of the men present during the altercation of August 2016 stated, as read to the court:
…it does say that there appeared to have been some brewing tension between the parties and a large number of people living in a small space, many of them sharing rooms…
It says that the victim, without again wanting to put any blame upon him, does have a temper. So in my submission it appears in the circumstances there have been some brewing tensions, and they’ve bubbled over on this particular occasion. Both parties were yelling at one another across the table.
In her sentencing remarks Her Honour stated:
There has been impact on his victim of a physical nature was unable to work. It is difficult for persons like… who have a limited scope of work because of training and language to be put in that situation, and I accept that he would have been psychologically affected by this event.
Mr Lam told the hearing that he wanted to let everyone know that he takes full responsibility for his actions and he realises his actions have harmed other people and impacted other people’s lives. He asked for forgiveness.
There is no evidence, one way or the other, that identifies what effect if any the revocation of the decision to cancel Mr Lam’s visa would have on the victims of his convictions in May 2016 and February 2017. However if Mr Lam’s visa remains cancelled it will impact his mother and sister not as victims but as family members and is addressed elsewhere in the decision. Therefore it can be inferred that it is more likely than not there would be no impact in a practical sense on the victims and that this consideration has no bearing upon consideration of revoking the decision to cancel Mr Lam’s visa under s 501CA(4) of the Act.
E. Extent of impediments if removed from Australia/not permitted to return
Direction No. 65 also states in paragraph 14.5(1) that:
“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 respondent conceded that Mr Lam would suffer some emotional hardship and mental health problems if removed from Australia. However, these should not have a direct bearing on his ability to establish himself and maintain basic living standards in Vietnam as there was no language or cultural barriers to Mr Lam returning. The respondent indicated that Mr Lam was still young and had spent half his life in Australia and half in Vietnam and his movement records indicated that he had spent a significant amount of time in Vietnam since arriving in Australia in 2003.
Mr Lam advised the Tribunal that he was very scared of losing his visa and having to return to Vietnam permanently, as he had basically no idea what he would do. Mr Lam also has no significant family or friends in Vietnam outside of his elderly grandmother who lived in the provinces, and there would be limited opportunity if any of securing work. Mr Lam’s criminal record would be an enormous barrier in securing housing and employment in Vietnam.
Mr Lam and his sister emphasised his greatest fear of returning to Vietnam would be the impact upon his and his mother’s mental health. They were both fearful that his mother’s psychiatric well-being would be greatly impacted and that this would have a significant impact upon Mr Lam. Mr Lam’s mother indicated to the Tribunal that she would not be able to travel to Vietnam to visit her son as her brain tumour prevented her flying. Mr Lam’s sister indicated that if her brother was returned to Vietnam she was very fearful her mother would suffer enormous guilt and fall into depression and this would significantly impact on her already fragile health.
Mr Lam’s sister advised the Tribunal the he had been in Australia for 17 years; that he has he visited Vietnam many times because it had been good for his mental health; that Vietnam has been his escape. However, the cultural differences are significant. If he was to go back he would struggle to get along as he was very young when he arrived in Australia. Mr Lam has spent most of his adult life here and is willing to give back to the community anyway he can.
Whilst it can be accepted that Mr Lam will suffer impediments if removed from Australia and not permitted to return, particularly the loss of connection to his family, there was no evidence that he would not be able to establish himself back in Vietnam. Given Mr Lam is still a young man, in good physical health, who speaks fluent Vietnamese and has no cultural barriers as he has returned to the country on numerous occasions, he would be easily able to maintain a basic living standard in the country of his birth. This consideration does not weigh in favour of revoking the cancellation of Mr Lam’s visa under s 501CA(4) of the Act.
CONCLUSION
Having regard to all of these matters, the Tribunal decides that the decision of the delegate of the Minister should be affirmed. In reaching that decision, we acknowledge that Mr Lam has found life very difficult. His feelings of being abandoned as a child by his mother in Vietnam and his difficulty adapting to life in Australia have influenced his life in an unfortunate way. He seems to have tried to escape these difficulties and his resultant depression by using drugs. By his own admission he has a hot temper which he struggled to curb leading him to violent actions which have had devastating impacts on numerous members of the Australian community.
Mr Lam’s family attest that he is a changed man who if allowed to stay in Australia will would make a positive contribution to his adopted country. He told the Tribunal he would dearly love to talk to other young offended to tell them his story so they do not make the same mistakes he has avoiding causing harm to themselves and others.
Although there is no evidence before us to suggest that he has committed any disciplinary offences since his incarceration and in immigration detention, he has not been re-tested in the community, where he has to make choices and decide a course of action for himself. In the past he has not learnt from his interaction with the police and correctional system. Indeed, his mother commented that perhaps the system had been too lenient in the past and his last, longer period in prison was his final wake up call to change his ways and to learn how to control his anger. He has not had the opportunity on this last occasion to show what he could do because he has not been able to be placed on parole. If there was an opportunity for conditions to be placed on his visa, such as he must live with his mother, seek employment, undertake treatment for his drug addiction and counselling for his depression in Vietnamese then the community may have faith that he has their trust to remain in Australia. Sadly there is no such opportunity afforded in this determination.
However, his past record of convictions and breaches of bail and of Community Based Orders means that there would be a significant risk of his breaching his parole. There would be too great a risk of his re-offending and returning to drug abuse and, in doing so, harming other members of the Australian community.
We acknowledge that Mr Lam’s family in Australia and particularly his mother will be devastated by the Tribunal’s decision. At the heart of the policy underpinning s 501CA(4), however, is the protection of the Australian community. Mr Lam’s behaviour since his arrival has led to repeated breaches of the law and threatening behaviour against other members of the community. The risk of his repeating the criminal conduct that has led to the cancellation of his visa and the consequent risk that he will bring harm to other members of the Australian community is too great to revoke the cancellation of his visa.
DECISION
For the reasons given, affirms the decision of a delegate of the Minister dated 9 April 2018 not to revoke the decision made on 17 February 2017 to cancel Mr Lam’s Class BB Subclass 155 Five Year Resident Return Visa.
110. I certify that the preceding 109 (one hundred and nine ) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member
[sgd]........................................................................
Associate
Dated: 2 July 2018
Dates of hearing:
21 & 22 June 2018
Applicant:
Self- Represented
Advocate for the Respondent:
Mr Chris Brinley
Solicitors for the Respondent:
Clayton Utz
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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Jurisdiction
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