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

[2023] AATA 4244

LBQY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4244 (21 December 2023)

Division:GENERAL DIVISION

File Number:          2023/7317

Re:LBQY

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:21 December 2023

Place:Melbourne

The decision of the Respondent dated 27 September 2023 not to revoke the mandatory cancellation of the Applicant’s Class WE Subclass 050 Bridging E visa is set aside and substituted with the decision that there is another reason why the mandatory cancellation should be revoked.

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

Dr Stewart Fenwick, Senior Member

Catchwords

MIGRATION – mandatory cancellation of visa – national of Vietnam – Class WE Subclass 050 Bridging E visa – failure to pass character test – single instance of offending – whether another reason mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – application for Protection Visa refused – decision set aside and substituted

Legislation

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)

Cases

CKL21 v Minister for Home Affairs [2022] FCAFC 70

DTU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1110
Walker v Minister for Home Affairs

[2020] FCA 909

Secondary Materials
Department of Foreign Affairs and Trade, Country Information Report Vietnam (11 January 2022)

Direction No. 99 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

21 December 2023

BACKGROUND

1. LBQY lodged an application on 5 October 2023 for review of the decision of a Minister administering the Migration Act 1958 (the Act) dated 27 September 2023. In this decision, the delegate decided not to revoke the Applicant’s visa, described as a Class WE Subclass 050 Bridging E. This visa had previously been mandatorily cancelled due to the operation of the character test, as set out in the Act.

2. Briefly, s 501 and associated sections of the Act require the Minister to cancel a person’s visa if they fail the character test due to having a substantial criminal record, and allow a person to seek to have this cancellation revoked. LBQY obtained the assistance of legal advisers to seek revocation after being notified in February 2022 that his visa had been cancelled. Cancellation arose from a conviction in 2020 for cultivating a commercial quantity of cannabis, and a cannabis trafficking offence.

3. LBQY was born in Vietnam in 1975 and arrived in Australia in 2013 as an unauthorised maritime arrival. He spent a period of time in immigration detention and in 2016 applied for a Safe Haven Enterprise Visa Subclass 790 (SHEV), with the permission of the Minister. This application was refused, including by the Independent Assessment Authority (IAA), and, on 29 November 2023, this refusal was upheld in a judicial review application (DTU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1110, (DTU18)).

4. The Applicant married Ms OT in 2017. His own family remain in Vietnam, and he has a number of friends and extended family on his wife’s side in Australia.

5. LBQY was represented at the hearing by his migration agent who lodged a Statement of Facts, Issues and Contentions (ASFIC), a reply (Reply), and a bundle of documents (AB, 1-23). The Respondent lodged a Statement of Facts, Issues and Contentions (RSFIC), documents under s 500(6F) of the Act (G), and supplementary documents obtained under summons (SG).

6. Evidence was given at the hearing by LBQY, Ms OT, and by several relatives and a friend. They were assisted by an interpreter in the Vietnamese language.

   LEGISLATION

7. Mandatory cancellation arises under s 501(3A) of the Act in circumstances where the Minister is satisfied that a person has a substantial criminal record and is serving a sentence of imprisonment. Relevantly, a person may fail the character test where they have been sentenced to a term of imprisonment of 12 months or more (s 501(6)(a); s 501(7)(c)).

8. This cancellation may be revoked if the Minister is either satisfied that a person does pass the character test, or ‘that there is another reason why the original decision should be revoked’ (s 501CA(4)(b)(ii)). A decision-maker exercising the power to revoke mandatory visa cancellation must comply with guidance provided under s 499 of the Act, and this is found in Direction No. 99 ‘Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (the Direction).

9. The Direction provides a number of primary (8.1-8.5) and other considerations (9.1-9.4) that provide a framework for considering whether another reason exists to revoke a mandatory visa cancellation. A decision-maker is not confined to considering only those considerations listed. These considerations are informed by a set of Principles (5.2):

   (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)   Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   (3)   The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

   (4)   Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

   (5)   With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

   (6)   Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

   ISSUES

10. I must first consider whether LBQY fails the character test. Having considered the national criminal history Check Results Report (G3/A) and sentencing remarks of the County Court dated 26 November 2021 (G4), I am satisfied that he was sentenced to a total effective sentence of four year’s imprisonment. Accordingly, the Applicant fails the character test.

11. I must now consider whether there is another reason to revoke the mandatory cancellation of LBQY’s visa. 

    PRIMARY CONSIDERATIONS

12. There is no indication in materials lodged or submissions that the interests of any minor children are affected by the decision. Therefore, this primary consideration (8.4) weighs neutrally.

    Protection of the Australian community

    The nature and seriousness of the conduct

13. The following summary of LBQY’s offending is based on the sentencing remarks (G6). The Applicant was charged and found guilty in respect of cultivation of a commercial quantity of cannabis at a rural property between 12-20 March 2020, and trafficking of cannabis between 19-20 March at a second property. LBQY pleaded not guilty, but the evidence established that it was highly likely he had been present at the first property which was set up as a ‘grow house’ containing 281 cannabis plants. He travelled with a co-accused to the second property, where LBQY stayed overnight, and where he was found by police on 20 March 2020. Cannabis was being dried at this second property.

14. The sentencing judge rejected arguments raised by LBQY that his presence at the properties was explicable by coincidence or was in some way consistent with innocence. It was found that he intentionally cultivated cannabis in the first property, and also harvested cannabis, which was then prepared at the second property. The amount at the second property was over 30 times a trafficable quantity. LBQY was initially remanded in custody, but was later granted bail, and was again remanded following guilty verdicts in June 2021.

15. The report of Ms Gina Cidoni, psychologist, dated 23 August 2021 was before the court. Ms Cidoni reported that LBQY stated his involvement in the offending arose due to having borrowed $5,000 to pay immigration legal fees. She was also of the opinion that the Applicant’s capacity to think clearly when offending may have been affected by an adjustment disorder, with severe depression and anxiety.

16. In September and October 2021, through his legal representatives, LBQY made efforts to assist police, albeit hampered by the absence of an interpreter. The sentencing judge notes that the Applicant informed police he had been engaged by a person as a handyman two months prior to his arrest, and was subsequently asked to perform work at the properties. LBQY contacted this person upon arrest and they threatened the Applicant’s family in Vietnam to ensure he did not cooperate with police.

17. The police informed the court that upon arrest, LBQY claimed he was contacting his girlfriend when he spoke to the person who engaged him in the enterprise. Police had conducted an investigation and identified two further properties associated with this person at each of which 300 cannabis plants were being grown. While LBQY’s information was consistent with police intelligence, police did not consider that it was of any significant value.

18. The sentencing judge noted the maximum penalty for cannabis cultivation is 25 years’ imprisonment. The assistance provided to police was sufficient to qualify for consideration for a non-custodial sentence under sentencing legislation, but was not a significant mitigating factor. The judge described the offending as serious and motivated by financial gain. However, he identified financial pressure as an extenuating circumstance, and took into account a heart condition. The judge sentenced LBQY to three years’ and nine months’ imprisonment for cultivation, and 10 months’ imprisonment for cultivation, with three months of the latter to be cumulative. He fixed a non-parole period of two and a half years.

19. In a statement accompanying his revocation request (G14) the Applicant states that financial pressures arose from his immigration matter and from supporting his wife’s needs arising from a medical condition [19], [29]. The condition prevented her from having children and also meant that she could not work full time [19]-[20]. The statement is largely consistent with the summary of the circumstances of the offending given above [30]-[34]. LBQY describes coronary bypass surgery in 2016, a condition for which he continues to take medicine [44].

20. In his further, recent statement (AB10) LBQY describes IVF treatment in 2017, a failed pregnancy in 2019, and a plan to conduct a further round of IVF treatment shortly prior to his arrest. The Applicant states that he worked full-time in a caravan manufacturing business for some years prior to opening a home renovation business.  LBQY also outlines the circumstances of the $5,000 loan obtained from a client who had engaged him on a renovation job. The Applicant states that he was paid fees of $350 for conducting several instances of work at the cannabis properties as directed by this person, money which would be deducted from his debt.

21. In evidence at the hearing, LBQY stated that prior to his arrest he had repaid half the loan amount. He confirmed in cross-examination that he had participated in harvesting cannabis for drying, and packaged it for collection. LBQY also stated that he had been ‘tricked’ and was not aware of the nature of the operation until he arrived. He stated that he had been manipulated and was told that should he be arrested, the persons involved would help him out.  

22. LBQY stated that he did not move to help police with the investigation until after being found guilty because he was aware of the harm that would arise if he provided help. He stated further that he wanted to help others because he had become aware that what he had done was wrong and wanted to make the community safer. He confirmed that he was offered money to pay for his immigration situation in early 2020, stating that he needed money to fund the appeal of his visa rejection, which was not progressed until then despite being lodged in 2018. LBQY agreed that it was unusual to accept an offer of money from someone he had only recently met, however also emphasised that the person involved was from the same area of Vietnam. I understood LBQY to indicate by this that he felt he could rely upon them.

    Submissions and finding

23. It was submitted for the Applicant at the hearing that his sentence for cultivation represented only 1/6 of the available maximum. It is also conceded that the offending should be considered serious (Reply [1]), but the revocation submission contends that LBQY’s offending is at the very lower end of the range of seriousness (G21, [22]). This is also said to be reflected in the extent of the sentence imposed [27].

24. In oral and written submissions, the Respondent contends that LBQY’s offending should be viewed as very serious. This is supported in the RSFIC by reference to matters raised in the sentencing remarks, and to the fact that a custodial sentence was imposed [21]-[22]. At the hearing it was further contended that the Applicant’s status as the holder of a temporary visa at the time of the offending aggravates its seriousness.

25. On its face, the Direction does not restrict the types of conduct that may be considered very serious (8.1.1(1) a)) or as serious (8.1.1(1) b)). I consider the best guide to be the sentencing remarks which, as noted, describe this as serious offending. I accept that the sentence for the cultivation offence is objectively in the lower range, however it was nonetheless a relatively substantial sentence (8.1.1(1) c)). That said, there is no dispute in this matter that LBQY has a very brief criminal record (8.1.1(1) d)-e)).

26. Due to the nature of the Respondent’s submissions, a question arises as to whether LBQY should be considered to have been on a ‘limited stay visa’. The Direction indicates that as a matter of principle, Australia has low tolerance for criminal conduct under these circumstances (5.2(4)).

27. The term ‘limited stay’ is not defined in the Direction and does not appear to be defined in the Act. It was considered in Walker v Minister for Home Affairs [2020] FCA 909 (Walker) at [26]-[32]. There, Bromwich J considered that, in its ordinary use, ‘the phrase “limited stay visa” refers to a visa that, at the outset, designates a limited period of time for which the bearer may remain in the issuing country’ [29].

28. The time in which a Subclass 050 Bridging visa is in effect is specified in Schedule 2 to the Migration Regulations 1994 (Cth) [050.5]. The only time period specified here is that of 35 days that is said to run following the occurrence of one of several kinds of decision, including by the Minister and by other review bodies. Such language does necessarily correspond directly with the interpretation proposed in Walker, noting that in that case, the visa under consideration permitted an indefinite stay in Australia.

29. Accordingly, the type of visa previously held by the Applicant might be understood as a ‘limited purpose visa’. However, I do not consider the phrase in the Direction is intended in any technical or strictly legal sense. This follows in part from the fact that it is not defined. I consider therefore that it may in fact have some application to consideration of LBQY’s circumstances in the context of the Direction. However, it appears to be most relevant in coming to a concluded view about revocation, rather than to deliberation about the relative seriousness of his criminal conduct.

30. I find that LBQY’s offending should be considered serious. I do not place any higher weight on it as proposed by the Respondent, for the reason that there is no evidence to indicate that he was anything more than a facilitator of a larger criminal enterprise. Further, while motivated by financial gain, his gain was not of any substantial scale, and arose in circumstances of personal financial pressure.

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

31. In his first statement (G14), LBQY states that he followed bail conditions when released [46]. He also states that he understands the seriousness of his actions and that ‘drugs have no place in the community’ [47]. If permitted to remain in Australia, LBQY states he would return to his wife and seek employment in one of the areas he has skills, being construction, home repair or mechanical work [50].

32. In his second statement (AB10), the Applicant states that his time in prison was enlightening, and he deeply regretted his wrongdoing. He also learned to ‘stay away from things that are harmful in the community’, and engaged in education and training activities. LBQY states that his wife’s family and friends are willing to help him if he is returned to the community. This includes an offer of employment from his sister-in-law and the possibility of returning to his job with the caravan manufacturer. The Applicant also states that he and his wife would like to attempt IVF treatment once more.

33. In his evidence, LBQY confirmed that he has a number of vocational certificates, but stated that his former employer is not aware of his offending record. He stated he has not had any contact with the people associated with his offending, and also that he has no history of drug or alcohol abuse, or gambling. When asked about the impact of cannabis on the community, the Applicant provided a quite long and detailed response. This included reference to the impact of the drug on the brains of young people, and that it can make driving hazardous.

34. In cross-examination, LBQY was pressed to confirm his normal drinking habits. He affirmed several times that he is a social drinker only. This questioning was associated with an allegation of family violence, which I will return to in more detail in a subsequent consideration.

35. The Applicant stated that were he again to fall into financial difficulty, he would discuss this with his wife. He considers them no longer to have serious financial problems and that he has numerous job opportunities. LBQY acknowledged a prior period of separation from his wife, but he stated that she ‘stayed with me’ during his criminal proceeding. He stated that he had previously stayed with a friend when he and his wife had argued, and again when released on bail. The Applicant appeared to explain this as being the preference of the police or court.

1. In response to questions from myself, LBQY acknowledged the reports lodged concerning his mental health. He understood there had been diagnoses of stress, depression and anxiety due to his worry over his wrongdoing. The Applicant stated that he had attended upon nurses a few times in detention in relation to his mental health.

2. Ms OT provided a statement for the revocation request (G16) in which she describes LBQY as hardworking, with many skills, and as a ‘good man’ [8]. While they have experienced ‘difficult times’, she states they have a happy marriage [9]. Ms OT describes three procedures during 2017-2018 for endometriosis, and states that she requires further procedures in the future to manage the condition [11], [15].

3. Ms OT was not aware of LBQY’s involvement with the drug operation, and understands he made the wrong decisions due to their financial struggle [24]-[25]. Ms OT considers that he has changed and learnt from his mistakes [30]. If permitted to remain in Australia, she believes he will return to being a part of the community in their area, including helping with the Buddhist temple [33]. They have been saving for a further round of IVF [34].

4. In her recent statutory declaration (AB11), Ms OT stresses that her first marriage failed due to her medical condition and inability to have children. She states that LBQY cared for her when she was unwell and that he has repeatedly apologised to her for his actions.

5. In evidence at the hearing, Ms OT stated that she owns her own home and that there is $350,000 outstanding on the mortgage. She presently works seven days per week as a nail technician averaging no less than $1500 income per week. Ms OT also confirmed that she was previously employed for ten years in the same industry.

6. LBQY’s sister-in-law (Ms HT) stated in her evidence that she manages a restaurant in a regional area. Consistent with her statutory declaration (AB12), the witness confirmed her willingness to offer the Applicant employment. She also stated her willingness to do anything to help should LBQY find himself in financial difficulty. While she was not aware of the nature of his offending, the witness considered this conduct to be out of character.

7. The Applicant’s brother-in-law (Mr NT) gave evidence that he was also a work colleague of LBQY from the caravan manufacturer. He spoke positively about LBQY’s work ethic and character, and considered he would be able to return to his previous employment. He was not, however, familiar with the offending conduct.

8. A former work colleague of Ms OT also gave evidence (Mr NM). He appeared to have little contact with LBQY and little knowledge of his offending, but confirmed that he would assist should the couple face financial difficulty.

9. In her report of August 2021 (SG3), Ms Cidoni records that IVF treatment had cost the Applicant and his wife ‘upward of $10,000’, they became financially distressed, and experienced a period of separation [17]. She reports administering, with some difficulty and incompletely, the Weschler Adult Intelligence Scale IV. Ms Cidoni determined that LBQY’s performance in two components to be extremely low [32]-[33]. She recommended further testing, but considered the results to indicate deficits in executive functions [45]-[46].

10. Ms Cidoni also administered two mental health assessments which indicated a very distressed and disturbed profile with clinical depression [35]-[36]. She also reports indications of anxiety, nervousness and compulsive behaviours [37]-[39]. Ms Cidoni diagnoses Adjustment Disorder with severe depression and anxiety [47]. She states that ‘it would appear the offending occurred in the context of a severe Adjustment Disorder’ [48]. Ms Cidoni considers the condition together with suspected low intellectual functioning would have impaired the Applicant’s ability to exercise judgment [50].

11. A report was prepared by Dr Jai Nathani, consultant psychiatrist, in September 2022 (G15) as part of the Applicant’s revocation request. Dr Nathani conducted a brief assessment of cognition during his online assessment, which demonstrated deficits that suggested an in-person assessment was warranted [6.1]. He diagnoses Major Depressive Disorder, and states that Adjustment Disorder with Mixed Anxiety and Depressed Mood is the main differential diagnosis [7.2]-[7.3]. Dr Nathani, however, considers the severity and variety of symptoms experienced by LBQY to be more consistent with Major Depressive Disorder.

12. Dr Nathani reports that it is his clinical opinion that the main factor contributing to past offending was financial difficulties [7.4]. He states his opinion that the Applicant struggles with a sense of self and to form a strong identity, and ‘defines his role as son and husband almost entirely in terms of how only money can allow him to protect and provide for his family’ [7.6]. Dr Nathani states that LBQY could benefit from antidepressant medication and psychotherapy [7.11]-[7.12]. He also notes that the Applicant has demonstrated an ‘awareness of, and intent to achieve’, relevant social supports [7.13].

13. Dr Nathani administered a formal clinical risk assessment (HCR-20) to assess the risk of LBQY reoffending. Among historical factors, Dr Nathani identified three to be present being: violence (an intervention order, discussed further below) which is of low relevance (7.19); substance use (arising from the use of alcohol which was neither heavy nor chronic) being of moderate relevance (7.23); and, traumatic experiences (said to arise from persecution in Vietnam) which is of low to moderate relevance (7.26). Recent problems of relevance identified by Dr Nathani were: lack of insight into the potential harm arising from the offending behaviour, being of high relevance; and, the presence of Major Depressive Disorder, a factor of moderate relevance.

14. On balance, in Dr Nathani’s opinion the Applicant is at low risk of reoffending but will benefit greatly from engaging with psychiatric services [7.39].

15. I note that a number of additional statutory declarations in support of the Applicant were lodged (AB13-18). I also note the reference provided by a Vietnamese community prisoner support worker (AB19) which describes informal counselling provided while LBQY was in prison.

    Submissions and finding

16. It was submitted for LBQY that he is only a ‘minute risk’ of reoffending. The Applicant’s representative sought to base submissions upon tests arising from authorities dealing with matters arising under s 36 of the Act (danger to the community). I informed him during closing submissions that a more relevant framework for considering risk was that provided for example in CKL21 v Minister for Home Affairs [2022] FCAFC 70 (CKL21).

17. Submissions then focused on LBQY’s capacity to accept responsibility for his actions, and to lead a pro-social life in the community, noting that he was well loved by his wife and friends. When prompted, the Applicant’s representative stated he was happy to accept the opinion of Dr Nathani in his client’s favour.

18. In the Applicant’s Reply, it is contended, in short, that as LBQY has a history of a single instance of offending at a mature age, he is at a low risk of reoffending; various technical sources are cited in support of this proposition [2]-[8]. It is also contended that a number of specific factors further reduce the likelihood of reoffending, including his desire to build a positive future, strong family support, and insight into avoiding criminal offending [9].

19. The Applicant’s earlier revocation submissions (G21/M) also identifies as relevant: his limited involvement in the criminal enterprise [31]; Dr Nathani’s clinical assessment [34]-[38]; and, the diverse matters already identified going to LBQY’s plans for a pro-social life [39]-[45].

20. It was contended for the Respondent at the hearing that LBQY has been assessed as being a low risk to the community. The fact that he appears to have limited insight into the harm of his offending should be considered. It was further contended that the Applicant’s personal circumstances have not changed since the offending took place. LBQY’s attendance upon nurses in detention indicated has also only taken limited steps to address his mental health.

21. It is contented in the RSFIC that there are specific and more general risks to the community should LBQY commit further drug-related offending [25]. A number of factors indicating ongoing risk of reoffending are identified [26]: LBQY has shown a tendency to minimise his offending behaviour; he may not be deterred from again seeking financial gain; and, he has undertaken little rehabilitation specifically related to his offending behaviour. Ultimately, it is submitted the risk of reoffending is unacceptable [28].

22. At a general level, the Respondent’s contentions that any repeat of drug-related offending carries a social cost is uncontroversial. However, I have the benefit of an expert assessment that rates the likelihood of any reoffending as low. While this material was subject to extremely limited attention at the hearing, it was not subject to any substantive challenge and I consider that I am able to rely upon it.

23. I also accept the Respondent’s contention that LBQY has apparently engaged little with either rehabilitation related to his offending, or with his diagnosed mental health conditions. My understanding is, however, that the Applicant does not maintain an underlying mental health condition, rather it was initially related to his personal circumstances, and is now associated with this response to his offending. He appears to acknowledge his conditions and has taken some, albeit limited, steps toward treatment.

24. The Respondent’s contentions as to limited insight into the offending may reflect in some respects the contents of Dr Nathani’s report. Both expert reports in fact identify a potential underlying issue with cognition, and this factor is suggestive of a somewhat lowered level of culpability in respect of the offending. I note, however, the qualifications placed on these opinions by the report writers, which somewhat moderates the weight can be put on them.

25. In contrast, however, I consider that LBQY demonstrated a very high level of insight into the impact of drug crime. Moreover, he has expressed appropriate levels of regret and shame which also demonstrates insight into his wrongdoing. The evidence overall also suggests that LBQY and his wife will in future cooperate more openly about stresses affecting their relationship, which appears to have been an important part of the offending context. The other witnesses appear likely to be in a position to provide further support.

26. As I noted during closing submissions, a relevant authority is CKL21. Briefly, key considerations include the frequency with which conduct occurred in the past, and the conditions under which it occurred, taking into account the extent to which they may have changed. With this framework in mind, it is relevant to note the very isolated nature of LBQY’s offending. Further, there appears to have been a mindset change as well as a shift in the marital relationship arising from the offence. That is, it appears from the evidence that it is likely in future that financial pressure will not exert the same role that it did in the Applicant’s life at the time of his criminal conduct.

27. Overall, I find that there is a low risk of LBQY repeating similar offending conduct, that carries some potential to cause harm in the community.

    Summary finding

28. LBQY has clearly breached the overarching expectation that non-citizens be law-abiding while in Australia (8.1(1)). While I accept that drug-related crime should be considered as serious, I do not consider that the risk of further similar harm arising in this instance is so serious it would be unacceptable (8.1.2(1)).

29. Clearly, the Applicant knowingly took part in a relatively large drug enterprise and did so willingly, in order to improve his financial circumstances. However, his circumstances generally lack any substantive underlying risk factor that might raise concern, and I accept the professional opinion about the low risk of reoffending.

30. I find that this consideration weighs against revocation.

    Family violence committed by the non-citizen

31. In his first statement (G14), LBQY acknowledges having previously argued with his wife in the context of failed IVF treatment and his immigration situation [25]. He states that one day during a loud argument, police attended and a three month intervention order was imposed, preventing him being near his wife when drinking [26].

32. Ms OT provides a similar account in her first statement (G16). She adds that the police applied for an intervention order on her behalf and that it was granted despite her objection, which was cancelled at the next court date [20]. She states that she called the police as she was scared of her husband yelling, but they have moved past that one incident [21]-[22].

33. Some attention was paid in evidence at the hearing to determining the nature and extent of any issues the Applicant may have, or have had, with alcohol. The thrust of LBQY’s evidence was that he is a social drinker. He acknowledged saying ‘unsavoury’ things during the argument with Ms OT. In her own evidence, Ms OT appeared to further downplay the incident and sought to explain the incident in terms of their inability, at that time, to share the burdens of marriage, or find ways to help each other.

34. I note that there appears to be no material lodged in this matter that sheds further light on the incident or the intervention order.

35. It is contended in the Applicant’s Reply that this consideration be given neutral weight and the absence of a conviction is noted [17]. In the revocation submissions (G21/M) it is contended that this incident is of limited seriousness, did not feature in Dr Nathani’s assessment and overall should be given neutral weight [51].

36. For the Respondent, it was contended that this consideration is engaged and is a primary consideration, and should be given weight against revocation (RSFIC [31]).

37. The Direction states that concerns about family violence are to be ‘proportionate to the seriousness’ of the conduct in question (8.2(1)) and I note that it is not necessary for there to be a criminal offence to engage this consideration (8.2(2) b)). Among the identified factors for consideration (8.2(3)) I note, relevantly the conduct was a single instance and does not appear to have had any impact on the relationship.

38. I find that this consideration weighs slightly against revocation.

    The strength, nature and duration of ties to Australia

39. In his second statement (AB10) LBQY states that without children and without the Applicant by her side, his wife would be very lonely. In her recent statement (AB11), Ms OT states that she has concerns about working from home and being alone at home without her husband. She also states that she feels pity about her situation as the Applicant used to take care of chores and that she feels sad without her husband by her side. In her previous statement (G16), Ms OT states she would be unable to have children if LBQY is deported to Vietnam [35].

40. I note that in cross-examination, Ms OT appeared to accept that she was able to support herself financially. I also note the evidence indicates that the family home was, at least initially, her own residence.

41. The written and oral evidence demonstrates that LBQY’s immediate family unit in Australia comprises himself and his wife, Ms OT. Additional family members, including witnesses at the hearing, and those listed in LBQY’s personal circumstances form (G11) consist of several members from his wife’s family and their partners who are resident in Australia. I do not understand the written or oral evidence generally from this wider group to have identified any specific impact on them of the revocation decision.

42. I have noted above, briefly, some elements of LBQY’s work and life background in Australia. This includes his employment history, self-employment, as well as an association with a Buddhist temple. The materials include statements in support from a number of individuals in addition to those who gave evidence at the hearing (AB).

43. In the Applicant’s Reply, it is submitted that in his ten years in Australia, LBQY has built a family unit, has a strong wider family network and has made a meaningful contribution to the community [18]. The effect of his removal is stated to be emotional in respect of family, and that his contribution to the workforce is an economic benefit [19], and the consideration should have moderate weight in favour of revocation [20]. The second revocation submission (G22) emphasises the impact removal of the Applicant would have on his wife, particularly given her longstanding health issues [5]-[6]. The submission also identifies LBQY’s past community activities and entrepreneurship [11]. Links to the Australian community (in the context of an earlier version of the Direction), it is argued, weigh heavily in favour of revocation [89] (G21/M).

44. The Respondent submitted that reduced weight should be afforded to this consideration as LBQY arrived in Australia at the age of 38, but it was accepted there would be some impact on family members were he to be removed. It was also contended that it was difficult to reconcile some conflicting evidence about marital separation and residence. Accordingly, this consideration should be given some, but reduced, weight in favour of revocation.

45. I consider based on the evidence overall, that the majority of any impact of the decision on revocation would be felt by Ms OT (8.3(1)). I consider this impact could be quite profound given the history of their relationship in the context of Ms OT’s prior marriage, and her inability – to date – to successfully conceive. I accept that LBQY has a small but apparently quite supportive wider family network which represent some relatively well-established ties (8.3(2)). I do not consider there to be a strong body of evidence about wider ties or social links (8.3(3)).

46. An important element for consideration is the length of time LBQY has resided in the community (8.3(4)). Taking into account prison and two terms of immigration detention, this appears to be a period of approximately five years. During this time I accept that, offending conduct aside, LBQY made a positive contribution.

47. Overall, I find this consideration weighs moderately heavily in favour of revocation. While LBQY can be said to have had a relatively light footprint in Australia due to his age on arrival and modest family and social ties, I accept that the burden of revocation would fall relatively strongly upon Ms OT.

    Expectations of the Australian community

48. This consideration expresses in a normative manner that the Australian community has an expectation that non-citizens obey the law (8.5(1)). Certain kinds of conduct, including acts of family violence, are specifically identified as triggering the expectation that a non-citizen’s visa be revoked (8.5(2) a)). This expectation applies regardless of whether there is a measurable risk of physical harm (8.5(3)).

49. It is submitted in the Applicant’s Reply that the evidence demonstrates that LBQY ‘is a man of inherently good character’, that he does not pose a risk, and therefore this consideration be given less weight against revocation [25]. It is acknowledged in the revocation submission (G21/M) that the expectation be weighed against the nature and circumstances of the Applicant’s offending, and that countervailing considerations be taken into account [53], [55]-[56]. Specific factors identified are the extenuating circumstances of LBQY’s financial pressure (supporting his unwell wife, and legal costs), and the fact that he has a single instance of offending [57]. Taking into account the other considerations in the Direction, it is contended that relatively less weight be afforded to expectations of the Australian community [58].

50. The Respondent submitted at the hearing that the expectation is that LBQY’s visa remain cancelled. It was also contended that additional weight be given to this consideration due to the fact that the Applicant held only a temporary visa. The Respondent’s written submissions contend that the nature of harm arising from further offending means that countervailing considerations in LBQY’s favour should not be found to justify revocation, and this consideration weighs heavily against revocation [42]-[43].

1. I accept from the terms of the Direction itself that this consideration weighs against revocation of a non-citizen’s visa. However, I do not consider the character concerns arising from the offending, as discussed above under the first primary consideration, to be substantial. I also do not place particular weight on the family violence conduct due to the nature of that incident.

2. Overall, I consider it appropriate to find that this consideration weighs against revocation.

   OTHER CONSIDERATIONS

3. Of the specified other considerations, neither evidence nor submissions went to the matters raised under Impact on victims (9.3), and accordingly this weighs neutrally.

4. As noted above, submissions for the Applicant identified that his skills and work experience were of value to Australia and the economy. The other consideration Impact on Australian business interests (9.4) is generally only to be given weight where the decision ‘would significantly compromise the delivery of a major project, or delivery of an important service in Australia’. Accordingly, I do not consider this consideration to be engaged and also afford it neutral weight.

   Legal consequences of the decision

   Evidence

5. In his most recent statement (AB10), LBQY states:

   (a)he was accused in 2011 of joining the Viet Tan party which opposed the current Government;

   (b)he was ‘summoned’ and the family’s business license was confiscated;

   (c)he was detained for questioning for two weeks and released under certain restrictions;

   (d)he spent time in hiding and subsequently decided to leave Vietnam by boat; and

   (e)his arrest in Vietnam is ‘still waiting’ and he would definitely have to spend time in prison.

6. In the revocation statement (G14), the Applicant describes problems with the Government arising from transporting people who were against the regime, and police raids on the family home [8]-[11]. He states further that he fears arrest on his return, and he fears being targeted as a result of his criminal conviction in Australia, and considers that he will not be safe [51]-[53].

7. In his evidence LBQY maintained that he would be subject to immediate arrest if he returned to Vietnam. He based this statement upon his experience with the Catholic Church, which the Applicant stated is oppressed by the state. LBQY cited the experience of a particular individual who he understood had been prosecuted on return for association with the Viet Tan organisation in Australia.

8. In cross-examination, LBQY stated he was selected for interview and investigation as he had joined the organisation. In response to a question from myself, the Applicant stated he had participated in meetings to discuss the government’s suppression of human rights. He acknowledged that his claims had included lack of economic opportunity, and being hired to drive people associated with the Catholic Church, but he disagreed that they had changed over time. LBQY stated he was unable to provide any documents about his arrest or any charges as he had been told to dispose of documents by those facilitating passage to Australia.

9. It was put to the Applicant that he had waited until 2017 to make any claims of harm, and he explained this was due to being fearful of telling the truth. He also raised concerns about a data breach of material held by Australian authorities.

10. In her evidence, Ms OT stated she was aware the Applicant’s protection visa had been refused. She stated she would do anything not to allow him to return because he is a refugee and his departure would have very negative consequences. While she had travelled to Vietnam, most recently in September 2023, she did not fear consequences herself as the local government was not aware of his situation. However, she considered that LBQY can be arrested on his return and that she would then be deemed an associate. Ms OT did not consider she could pursue other visa options for her husband.

    Judicial review decision

11. I noted above the recent court decision upholding the refusal of LBQY’s SHEV (DTU18). This is a class of protection visa under s 35A(3A) of the Act, and I summarise briefly from the decision with respect to various claims raised by the Applicant:

    (a)upon arrival in Australia in July 2013, LBQY reported that life is economically and politically difficult in Vietnam, he had spent some time overseas, the family had run out of money, regulations change frequently, and that lack of economic opportunity was the principal reason for leaving [3]-[4];

    (b)in October 2013, the Applicant stated that he had been accused of joining with government opponents, the Catholic Church was suppressed, and he had been hired to transport members of the Catholic community for a period of 15 days, leading to a charge [8]; and

    (c)in a declaration in March 2017, associated with the SHEV application, LBQY stated he had been told the Catholic Church was involved with the Viet Tan party, was ordered to report his movements to the police, and was ordered to attend a re-education camp [11].

12. The decision further addresses at length the consideration given by the Immigration Assessment Authority (IAA) to the administrative decisions made not to grant LBQY a visa. The Court agreed [70] with a number of key submissions made by the Minister including numerous instances where the IAA identified inconsistencies in the Applicant’s evidence [59]-[62], and that it was open to the authority to reject certain claims not made until 2017 [63]-[69]. The Court noted findings made that LBQY had not directly participated in protest action and of not being involved in activity to which adverse political opinion could be attributed [80]. The IAA was also found not to have failed to take account of an integer of the Applicant’s claims [86].

    Submissions and consideration

13. It was submitted for the Applicant at the hearing that he will commence a further appeal against the refusal of his SHEV. In brief, it was contended that Australia’s protection obligations are engaged under the Direction in circumstances where legal avenues are not exhausted, and claims have not been finally determined. These contentions are also contained in the Reply, noting that the Tribunal decision predates the deadline for lodging an appeal (28 December 2023) [29]-[31].

14. The revocation submission (G21) addresses in some detail the claims arising in the SHEV matter (at that time still before the court). The claims are summarised under the following headings: imputed political opinion [62]-[66]; fears as a returned asylum seeker [67]-[70]; and, sur place claims as a drug offender facing double jeopardy [71]-[75]. It is also specifically contended that fleeing abroad or defecting attracts criminal penalty.

15. It was submitted for the Respondent that, as at the time of the hearing, LBQY’s application for a SHEV had been dismissed, and finally determined. With respect to claims articulated in this matter, it was submitted that they lacked substance, there was no evidence substantiating his engagement with the justice system in Vietnam, and he would be unlikely to face any repercussions given he did not claim to be a person of any status in anti-government activism. Inconsistencies in his claims had been identified in the review process and, overall, the Tribunal should not be satisfied he is owed protection obligations.

16. It was also contended that given his status as an illegal maritime arrival, LBQY was prevented by s 48A of the Act from making a further protection visa application. Accordingly, the legal consequences are that the Applicant is subject to detention until removal and that this was not for an indefinite period. It was submitted that this consideration should weigh neutrally.

17. The Respondent’s written submissions note the claims raised in the SHEV application, and a subsequent claim to the possibility of charges and imprisonment as a result of drug convictions in Australia (RSFIC [49]). It is contended that the latter claim is not sustained by country information [51].

18. This other consideration is framed around the interaction of various provisions of the Act, in the context of Australia’s obligation not to return persons to a place where they would face a risk of harm (non-refoulement) (9.1(1)-(2)). The manner in which protection obligations are set out in the Act reflects the scope of this obligation. In short, the Act identifies harm arising from a well-founded fear of persecution including when based upon certain forms of serious harm (s 36; s 5J, s 5H), and arising from a real risk of significant harm (defined in s 36(2A) with reference to consequences including death and torture).

19. The Direction provides that where claims that may give rise to non-refoulement obligations have been made, they must be considered, but also notes that the protection visa process is designed to consider such claims (9.1.2(1)-(2)). In this instance claims made by the Applicant in the course of considering his SHEV application have been subject to detailed and repeated consideration. Accordingly, I do not consider it necessary to give those claims detailed consideration here. I consider it appropriate to note that LBQY has been found not to be owed protection obligations on the basis of claims including his association with or help provided to members of the Catholic Church. I understand that no adverse finding has been made about his engagement with police, but that some doubts have been raised, particularly about the credibility of his 2017 claims.

20. LBQY continues to maintain these claims, and has also stated in evidence to have participated in meetings of the Viet Tan. This appears to be a further, new claim, and challenges prior findings concerning LBQY’s lack of involvement in opposition activity. While I cannot rule out this as possibly true, given the history of evolution of the Applicant’s claims, I give it very little weight.

21. I note that in the course of his evidence, LBQY also sought to advance what I understood to be new protection claims arising from his time in detention. I did not allow this evidence given that it was advanced in contravention of the ‘two-day rule’ (s 500H prevents me having regard to oral information not previously set out in writing at least two business days prior to a hearing).

22. In respect of possible legal consequences on LBQY’s return to Vietnam, the current DFAT Country Information Report Vietnam notes that double jeopardy is a theoretical possibility only [5.11]. The report notes a range of consequences for failed asylum seekers upon return, but these do not include detention [5.29]-[5.35]. I will return to this in the following consideration.

23. On the basis of the evidence overall, I find that LBQY has very limited prospects of establishing non-refoulment obligations. His claims have been thoroughly addressed in multiple reviews, and while LBQY now claims prior direct involvement in reform activities, this claim is unsubstantiated and novel, in the context of his claims history. I accept that he appears likely to lodge an appeal against the recent court decision. On the basis of his matter as it presently stands, failure to revoke mandatory cancellation is not likely to place the Applicant in a position where he will face harm of the kind contemplated by the Direction.

24. The immediate legal consequence of an adverse revocation decision is therefore that LBQY will remain in detention for the duration of any further proceeding and, due to the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, such detention will not be indefinite.

25. I find that this other consideration weighs neutrally.

    Extent of impediments if removed

26. In his revocation statement (G14), LBQY states he is the eldest of five children, and that his mother and siblings continue to live in Vietnam [2]-[7]. He also describes completing school and then undertaking a mechanical apprenticeship in Korea in the early 2000’s, later returning to take up the family transport business. LBQY identifies three siblings in Vietnam in his personal circumstances form (G11, 104).

27. In cross-examination, LBQY acknowledged that his skill set had expanded during his time in Australia, however he considered they were not transferable to Vietnam. The Applicant thought he would only be able to undertake a job such as cleaning, not construction or assisting in a kitchen. LBQY stated that the question is whether anyone would hire him if he returned.

28. LBQY confirmed that he has remained in touch with his family in Vietnam. He stated that they could not assist him upon return due to the 100% likelihood he will be arrested. The Applicant stated that he takes medicine for arrhythmia, and for his cholesterol level and blood pressure.

29. As noted, Ms OT gave evidence that she had returned to Vietnam recently, which was due to her father’s cancer diagnosis. When asked specifically if she would consider joining LBQY were he to be deported she responded that was not possible. This was on the basis that he was a refugee and would be arrested, with consequences for herself.

30. It is contended in the Applicant’s Reply that return to Vietnam would heighten his anxiety and worsen his heart condition [33]. It is further contended that LBQY did not ‘build his life’ in Vietnam during the first 38 years of his life, as he married in Australia [20], [35]. In summary, as a returned convict the Applicant would have significant difficulty re-establishing himself, and it is submitted this consideration weighs moderately in favour of revocation.

31. It was submitted for the Respondent that LBQY may face some initial difficulties in the short term, but not such as to preclude resettlement. It was contended that the Applicant’s work history indicates he is indeed likely to be able to find employment and that his family will be in a position to assist him, and he would have access to support systems. While the consideration weighs slightly in his favour, it should be given limited weight. These submissions are consistent with those in the RSFIC.

32. This consideration requires me to assess any impediments in the context of a non-citizen being able to establish themself and maintain basic living standards generally available to other citizens (9.2). I agree with the Respondent that LBQY faces no language or cultural barriers and will have access to family, and possibly other, support systems. I do not understand the evidence to demonstrate that the Applicant has any health conditions that would not be capable of being addressed in Vietnam.

33. Much of the Applicant’s approach to this consideration is coloured by his purported claims of harm upon return. I have considered these and found that they are unlikely to be realised. However, I consider it reasonable to accept that the Applicant may face some added difficulty due to his status as a returned asylum seeker. The available country information indicates that returnees typically face challenges in re-establishing themselves. Failed asylum seekers may have less access to support than trafficking victims, for example (DFAT Country Information Report Vietnam [5.32]).

34. I find that this consideration weighs slightly in favour of revocation

    CONCLUSION

35. Of the primary considerations, I have found that Protection of the Australian community and Expectations of the Australian community weigh against revocation, and Family violence committed by the non-citizen slightly against. The consideration Strength, nature and duration of ties to Australia weighs moderately heavily in favour of revocation, and Best interests of minor children in Australia affected by the decision weighs neutrally.

36. Of the other considerations, I have found that Extent of impediments on return weighs slightly in favour of revocation, and Legal consequences of the decision weighs neutrally. Impact on victims and Impact on Australian business interests also weigh neutrally.

37. The Direction provides that primary considerations should generally be given greater weight than other considerations, and that one or more primary considerations may outweigh others (7(2)-(3)). I also note that in applying the considerations, evidence from independent and authoritative sources should be given appropriate weight (7(1)).

38. As noted above, the Respondent has submitted that I should take into account the fact that LBQY was on a bridging visa at the time of his offending. I consider that the Principles require me to take note that Australia has a lower tolerance for criminal conduct in circumstances where a non-citizen was not living in Australia on a more permanent or long-term basis. In this case, however, it certainly appears that LBQY’s intention was in fact to settle in Australia, and the thrust of submission on his behalf is that his life is complete now that he has married a resident. Therefore, I place only limited weight on this matter.

39. The Principles clearly state that the overall expectation is that non-citizens do not commit offences or undertake other serious conduct, and that visa cancellation follows as a consequence of breach of this expectation. While LBQY does not engage the higher level of tolerance that may apply for those who have grown up in Australia, I do not consider that his offending is identifiable as very serious, or that his conduct overall raises serious character concerns. I am reinforced in this by reference to the expert medical evidence lodged in this matter.

40. I am satisfied that were the Applicant’s visa to remain cancelled this is likely to have a potentially substantial impact upon Ms OT. There is also the likely prospect that LBQY would face some challenges upon return, but in addition, his return would upend a modest but apparently contented relationship. These, together with the Applicant’s remorse and insight into the impact of his offending and his low risk of reoffending stand as important countervailing considerations. I also consider that speculation about a range of possible scenarios arising from visa types, in the context of likely future litigation, extends my considerations into speculation beyond the immediate available facts.

41. Accordingly, I find that there is another reason why the mandatory cancellation decision should be revoked.

    DECISION

42. For the reasons given above, the Tribunal decides that the decision dated 27 September 2023 not to revoke the mandatory cancellation of the Applicant’s Class WE Subclass 050 Bridging E visa is set aside and substituted with the decision that there is another reason why the mandatory cancellation should be revoked.

I certify that the preceding 127 (one hundred and twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

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

Associate

Dated: 21 December 2023

Date(s) of hearing:	6 & 7 December 2023
Date final submissions received:	30 November 2023
Advocate for the Applicant:	Quan S Do
Solicitors for the Respondent:	Sparke Helmore