Le and Minister for Home Affairs (Migration)

Le and Minister for Home Affairs (Migration) [2018] AATA 4126 (5 November 2018)
Division:GENERAL DIVISION
File Number(s): 2018/4701
Re:Van Tiep Le
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Member S Burford
Date:5 November 2018
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 9 February 2017 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.
.....[sgd]...................................................................
Member S Burford
CATCHWORDS
Migration – decision not to revoke mandatory cancellation of visa – two-day rule – character test – substantial criminal record – Ministerial Direction no. 65 – primary and other considerations – protection of the Australian community – best interests of minor children – expectations of the Australian community – nature and seriousness of criminal offending – risk of engaging in future criminal conduct – strength, nature and duration of ties to Australia – extent of impediments if returned to Vietnam – ‘statelessness’ and Vietnamese nationality – risk of indefinite detention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499, 499(1), 499(2A), 500(1)(ba), 500(6B), 500(6J), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501(7A), 501CA, 501CA(4), 501G(1)
CASES
Do and Minister for Immigration and Border Protection [2016] AATA 390
Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
Kostopoulos and Minister for Home Affairs [2018] AATA 3859
Kumeroa and Minister for Home Affairs [2018] AATA 3744
Murphy and Minister for Immigration and Border Protection [2018] AATA 750
Nguyen and Minister for Home Affairs [2018] AATA 3726
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Zyaran and Minister for Home Affairs [2018] AATA 3785
SECONDARY MATERIALS
Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 21 June 2017 – page 6.
Lyma Nguyen, “Report on Citizenship Law: Vietnam” Country Report 2017/13, (European University Institute and Robert Schuman Centre for Advanced Studies, Global CIT, Italy, September 2017).
Ministry of Justice (Vietnam), Decree: Detailing and guiding a number of articles of the law on Vietnamese nationality (Vietnam), 22 September 2009,
Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Immigration and Border Protection, 22 December 2014) – paras 6.1, 6.1(3), 6.2, 6.3, 7(1)(b), 8, 13(1), 13(2), 13.1(1), 13.1(2), 13.1.1(1),13.1.1(1), 13.1.2(1), 13.1.2(2), 13.2, 13.2(2), 13.2(3), 13.2(4), 13.3(1), 14, 14.1, 14.2(1), 14.3(1), 14.4(1), 14.5(1)
‘President signs order to announce amended nationality law’, 2014, Viet Nam News Agency, 1 July, FOR DECISION
Member S Burford
5 November 2018
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Respondent dated 9 February 2017 and re-notified by email dated 13 August 2018 (the Reviewable Decision) not to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return Visa (the visa) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act). The mandatory cancellation occurred by virtue of s 501(3A) of the Act.
A decision of a delegate of the Minister not to revoke the cancellation of a visa under
s 501CA(4) of the Act is reviewable by the Tribunal under s 500(1)(ba) of the Act.
For the following reasons, the Tribunal has concluded that the decision not to revoke the cancellation of the Applicant’s visa should be affirmed.
BACKGROUND
The Applicant, Van Tiep Le was born in Vietnam in 1961. He is 57 years old. He first arrived in Australia on 5 June 1991 from Hong Kong on a subclass 205 (Camp Clearance) Visa (Exhibit R1, G30/130). Relevantly, this was a subclass of visa granted to citizens of the Republic of Vietnam who were living in camps maintained by the United Nations High Commissioner for Refugees and who arrived in these camps prior to a designated date in the late 1980’s. The camps were situated in a number of countries including Hong Kong.[1]
[1] Migration Regulations 1958 (Cth), Cl 106. (In force under the Migration Act 1958 (Cth), Reprinted as at 1 October 1991).
The Applicant was 29 years old when he arrived in Australia. He was accompanied by his wife and three young children (Exhibit A1, para 1). He separated from his wife in 2011 but reconciled with her “in or around 2016” whilst in detention (Exhibit A3, para 33).
In 2007 he was granted the visa.
The Applicant was charged with his first offence, “stealing”, in Australia on 18 July 1991 while living in New South Wales. He was convicted for this offence on 29 August 1991 by the Bankstown Local Court and received a fine.
The Applicant next offended on 3 August 1991, and again was charged with “stealing”. He was convicted on 5 November 1991 in the Bankstown Local Court and again received a fine. He was charged with “stealing” again on 24 September 1991. On 2 December 1991 he failed to appear in the Blacktown Local Court and a warrant was issued. The Applicant was charged again with “stealing” on 26 February 1992. He was convicted on 19 March 1992 and received a fine. He was charged again with “stealing” on 26 June 1992. A warrant was issued for his arrest by the Parramatta Local Court on 14 July 1992 for this offence. He was charged again with “stealing” on 16 July 1992 and was convicted of this offence in the Burwood Local Court on 10 November 1992. He was sentenced to an 80 hour Community Service Order (Exhibit R1, G13/50; Exhibit R5).
On 10 February 1993 the Applicant was charged with two counts of “fail to appear” and two counts of “stealing”. He was convicted on 8 March 1993 at the Bankstown Local Court and was sentenced to a fixed term of six weeks on each charge (Exhibit R1, G13/50; Exhibit R5).
There was then a brief break in the Applicant’s offending until 11 March 1995 when he was charged with “supply prohibited drug (heroin)”. The Applicant was convicted of this offence on 10 May 1995 in the Fairfield Local Court. He was sentenced to a 200 hour Community Service Order. On 10 April 1995 and 29 April 1995 he was charged with “supply prohibited drug (heroin)” offences. He was convicted of these offences (two counts) on 20 June 1995 at the Liverpool Local Court. He received a fixed term of six months on each count. He was charged again with two counts of “supply prohibited drug” on 18 August 1995. He was convicted on 13 September 1995 at the Fairfield Local Court and was sentenced to a minimum term of 12 months and an additional term of four months with release subject to supervision.
He appealed this sentence. On 15 November 1995 the conviction was confirmed and his sentence in lieu was a minimum term of nine months with an additional term of three months.
By a letter dated 15 April 1996 from the Department of Immigration and Multicultural Affairs (Exhibit R1, G27/123), the Applicant was advised that with respect to the conviction on 15 November 1995 and his prison sentence on that date:[2]
…the delegate of the Minister for Immigration and Ethnic Affairs decided not to order your deportation from Australia on the basis of these convictions but that you should be administered a warning as to the consequences of your re-offending.
You are hereby warned that should you again come to adverse notice of the Department through criminal activity, the fact that you ignored this warning will weigh heavily against you, and the question of your deportation will be reconsidered accordingly.
You should be aware that, as long as you remain a permanent resident of Australia, any further criminal conviction in Australia may lead to the re-assessment of your liability to deportation pursuant to section 200 of the Migration Act.
You will only pass beyond the scope of section 200 of the Act by becoming an Australian citizen. I suggest that you give serious consideration to applying for Australian citizenship as soon as you are eligible… [Original emphasis.]
[2] The letter in G27 refers to the conviction on 8 November 1995, however, the National Police Certificate (G13) records the 15 November 1995 as the relevant date of conviction. The Tribunal finds that the date is not material, but accepts that the conviction occurred on 15 November 1995.
By the time the Applicant received this warning letter, he had been convicted of a total of 13 offences (committed between 1991 and 1995) (Exhibit R1, G13/50).
The Applicant signed to acknowledge receipt of the letter on 17 April 1996. He signed in the presence of a TIS interpreter (Exhibit R1, G27/124).
In 1997 and 1998 the Applicant was convicted of multiple offences including “burglary and commit offence”, “burglary”, “burglary and commit offence (habitation)” and “assault occasioning bodily harm” with sentences ranging from 12 to 15 months imprisonment (Exhibit R1, G13/49-50).
On the 25 May 1999, the Applicant was advised by a letter from the Department of Immigration and Multicultural Affairs that the delegate of the Minister had decided not to order the Applicant’s deportation from Australia on the basis of his convictions for these offences. The letter noted that:
It was decided that you be issued a warning to the effect that if you are convicted of any further offences then, it may lead to the question of your deportation being reconsidered by the Minister.
You are also warned that disregard of this warning will weigh heavily against you if the Minister reconsiders your case (Exhibit R1, G28/125).
[Original emphasis.]
The Applicant signed acknowledging receipt of the letter on 31 May 1999 (Exhibit R1, G28/126).
From April 2001 to November 2005 the Applicant was convicted of numerous offences including “stealing”, “burglary and commit offence” and traffic offences. On 7 December 2005 he was convicted in the Perth District Court of Western Australia of “amphetamine possession with intent”. He was sentenced to two years imprisonment for this offence.
On 27 September 2007, the Applicant was advised by letter from the Department of Immigration and Citizenship that:
…the Minister for Immigration and Citizenship has made a decision not to cancel your visa on character grounds at this time. Your current visa will continue to provide you with permission to remain in Australia. However the Minister decided that you are to be given the following formal warning.
Please note that visa refusal cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered (Exhibit R1, G29/127).
[Original emphasis.]
The Applicant signed the following acknowledgment of receipt of this decision on

5 October 2007 (Exhibit R1, G29/129) which stated:
I, LE Van Tiep, acknowledge receipt of the Notice of Decision Not to Cancel Visa Under Section 501 of The Migration Act 1958, dated 27 September 2007.
[Original emphasis.]
On 15 November 2016, the Minister for Immigration and Border Protection mandatorily cancelled the Applicant’s visa under s 501(3A) of the Act (Exhibit R1, G3/10). The visa was cancelled because a delegate of the Minister was satisfied that the Applicant did not pass the character test due to his substantial criminal record within the meaning of

s 501(6)(a) and s 501(7)(c) of the Act. Section 501(7)(c) of the Act provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant was sentenced on 6 July 2016 in the Joondalup Magistrates Court to 13 months imprisonment for the criminal offence of “steal motor vehicle and drive recklessly” (Exhibit R1, G3/11; Exhibit 1, G13/44). The decision-maker was also satisfied that at the time of decision the Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory (Exhibit R1, G 3/11).
The letter of 15 November 2016 invited the Applicant to make representations about the revocation of the mandatory cancellation of the visa, which the Applicant did in a “Request for Revocation of a Mandatory Visa Cancellation under s 501(3A)”, signed on

22 November 2016 (Exhibit R1, G18/75-76).
On 9 February 2017, the delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision of 15 November 2016. The Department later reassessed the case and found that the Applicant was not correctly notified. The decision was renotified to the Applicant on 13 August 2018 by email (Exhibit R1, G12/33).
After the Applicant served his term of imprisonment, he was taken into immigration detention at the Yongah Hill Immigration Detention Centre.
On 21 August 2018 the Applicant lodged an application for review of the Reviewable Decision in this Tribunal (Exhibit R1, G2/3).
ISSUE
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Act; and
(b)if the Applicant does not pass the character test, whether there is another reason why the cancellation decision should be revoked (s 501CA(4) of the Act).
JURISDICTION
This application is made pursuant to s 500(1)(ba) of the Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent not to revoke a decision to cancel a visa.
The Reviewable Decision of 9 February 2017 was communicated to the Applicant on

13 August 2018 and, as noted above, he lodged his application for review on 21 August 2018. The Applicant is in detention at Yongah Hill Immigration Detention Centre, and is in the migration zone. He therefore lodged his application for review by the Tribunal within the nine day period after he received the decision in accordance with s 501G(1) and

s 500(6B) of the Act.
The Tribunal is therefore satisfied that the application was lodged within time and that it has jurisdiction to review the Reviewable Decision.
MATERIAL BEFORE THE TRIBUNAL
The application was heard by the Tribunal on 18 October 2018. The Applicant appeared in person. He was represented at the hearing by Counsel Mr Benjamin Zipser and Mr Philip Pham from Pham Lawyers. Mr Zipser and Mr Pham appeared via video link from Sydney with the leave of the Tribunal. The Applicant was assisted by an interpreter in the Vietnamese and English languages. The Respondent was represented by Mr Ashley Burgess from Sparke Helmore Lawyers who appeared in person. The Applicant gave evidence and was cross-examined. The Applicant’s wife, Quyet Thi Do, and his eldest daughter, Tuyen Thi Le, also gave evidence and were cross-examined.
The Tribunal had the following documents before it:
(a)the Applicant’s updated Statement of Facts, Issues and Contentions dated 16 October 2018 (Exhibit A1);
(b)a Statutory Declaration of Van Tiep Le dated 10 October 2018 (Exhibit A2);
(c)a Statutory Declaration of Quyet Thi Do dated 10 October 2018 (Exhibit A3);
(d)a Statutory Declaration of Tuyen Thi Le dated 10 October 2018 (Exhibit A4);
(e)copies of discharge summaries from Graylands Hospital, various dates (Exhibit A5);
(f)a briefing letter to Hoang Duc Phu and a report from Hoang Duc Phu dated 2 October 2018 (in both Vietnamese and English) (Exhibit A6);
(g)a copy of Vietnamese legislation, Decree 97 of 2014 (Exhibit A7);
(h)a Report on Vietnamese Citizenship Law by Lyma Nguyen (Exhibit A8);[3]
(i)a one-page extract by National Commission of Audit, Towards Responsible Government: Appendix to the Report of the National Commission of Audit, Volume 2, February 2014, page 113 (Exhibit A9);
(j)a copy of the Law of Vietnamese Nationality, Decree 24 of 2008 (Exhibit A10);
(k)the s 501 documents (G documents) from G1 to G34 (Exhibit R1);
(l)the Respondent’s Statement of Facts, Issues and Contentions dated 3 October 2018 (Exhibit R2);
(m)material produced on summons from the Perth Magistrates Court of Western Australia (Exhibit R3);
(n)material produced on summons from Joondalup Magistrates Court (Exhibit R4);
(o)material produced on summons from New South Wales Police Force (Exhibit R5);
(p)material produced on summons by the Western Australian Police Force (Exhibit R6); and
(q)an Australian Travel Document/Titre de Voyage, issued in the name of the Applicant on 13 January 1998 (Exhibit R7).
[3] Lyma Nguyen, “Report on Citizenship Law: Vietnam” Country Report 2017/13, (European University Institute and Robert Schuman Centre for Advanced Studies, Global CIT, Italy, September 2017).
At the commencement of the hearing, Counsel for the Applicant raised that he had overlooked a document provided to him by the Applicant’s solicitor and asked the Tribunal if it could be tendered. Mr Zipser identified this document as a management plan from the Department of Corrective Services printed in June 2017. The Respondent’s legal representative submitted that they opposed the tendering of any additional evidence under s 500(6J) of the Act because it had not been provided to the Minister at least two business days before the hearing. This is known as the “two-day rule”.
The two-day rule was considered by the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 at 389-390[25]. The Full Court explained:
The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant’s case unless the Minister has had two business days’ notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998(Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the 84 day time limit for the whole process, laid down in subs (6L).
On this basis, the Tribunal deemed it appropriate in the circumstances to proceed with the hearing, as contemplated above by the Full Court.

It is noted that in applying the two-day rule, the Tribunal must, however, be mindful not to fall into jurisdictional error by failing to consider a primary consideration. Further, the two- day rule does not prevent the matter from being adjourned to ensure that the Tribunal’s “review is conducted thoroughly and fairly” (Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at 223 (Uelese)). Further, information which is elicited under cross-examination which may support an applicant’s case is not excluded (Uelese).
The Applicant was provided with an opportunity to produce evidence in support of his application. At the hearing, Counsel for the Applicant indicated that the document was not critical although they would like to rely on it if they were able. As the Applicant was providing testimony at the hearing along with his wife and daughter, this provided an opportunity for the Tribunal to explore issues related to the primary and other considerations. As a consequence, it is the Tribunal’s opinion that the review was able to be “conducted thoroughly and fairly” (Uelese) without an adjournment to enable this material to be tendered.
The two-day rule arose again several times during the hearing. During examination-in-chief of the Applicant, Counsel for the Applicant indicated that there were two additional questions which Counsel wished to ask the Applicant arising from the content of the Applicant’s Statutory Declaration of 10 October 2018 which had been lodged with the Tribunal in accordance with the directions. Cognisant of the two-day rule, Counsel sought the Tribunal’s leave to ask these questions of the Applicant. The Applicant was excused from the hearing room for part of the discussion of these questions.
The first question Counsel for the Applicant indicated that he wished to ask was a question arising from paragraph 29 of the Applicant’s Statutory Declaration which declared that he loved and had a good relationship with his grandchild. This was the grandchild of his second daughter. There was no other evidence before the Tribunal regarding this relationship. Counsel for the Applicant indicated that he wanted to ask the Applicant to outline more detail about the relationship including the degree of contact between the Applicant and that grandchild.
The second question related to paragraph 49 of the Applicant’s Statutory Declaration where he indicated that he “currently does not take any medication for my illness”. Counsel for the Applicant indicated that he wished to ask why the Applicant didn’t take any medication and whether he was currently receiving medical care or treatment in immigration detention.
In relation to the question regarding the Applicant’s relationship with his grandchild, the Tribunal indicated to the Applicant’s Counsel that as the best interests of minor children is a Primary Consideration for the Tribunal, the Tribunal would explore these issues with the Applicant in questioning if the matters did not arise in cross-examination. It followed that the Tribunal did ask questions of the Applicant regarding his relationship with his grandchildren including those of his younger daughter, who did not testify before the Tribunal. This was the grandchild referred to in paragraph 29 of the Applicant’s Statutory Declaration.
In relation to the questions regarding the Applicant’s medication/medical care and his mental health, the Respondent submitted that the material clearly fell within the two-day rule and as the Tribunal would not be able to have regard to the information if the question was asked, the question was therefore not relevant. The Tribunal indicated that it was clear from the Applicant’s Statutory Declaration what his current medication status was. The Applicant had put on evidence about his medical history and his Statutory Declaration acknowledged that he must take prescribed medication and follow doctor’s orders. On that basis the Tribunal did not allow the evidence to be sought from the Applicant in examination in chief. Counsel for the Applicant did not press the question and indicated that he would deal with the issue of the conclusions to be drawn from the evidence regarding the Applicant’s mental health in closing submissions.
As the issue of the Applicant’s mental health had been raised both in the context of the consideration of the risk of the Applicant reoffending and the extent of the impediments to the Applicant if removed, the Tribunal asked questions of the Applicant regarding his current treatment and medication regime. He was also asked in cross-examination about his plans to seek treatment if released.
As a consequence, it is the Tribunal’s opinion that the review was able to be “conducted thoroughly and fairly” (Uelese) without an adjournment.
Counsel for the Applicant also asked the Applicant’s expert witness several questions in re-examination. The Tribunal ruled that the final of these questions which asked the witness to comment on work he had done for clients which was not covered in the witness’ report (Exhibit A6) was an attempt to present new evidence in support of the Applicant’s case and would breach the two-day rule. The Applicant did not press the question.
The Tribunal notes that the Tribunal had before it the expert witness’ report and that the witness was extensively cross-examined by the Respondent. The Tribunal also had an opportunity to ask a number of questions relating to the operation and application of the Law on Vietnamese Nationality and his report.
As a consequence, it is the Tribunal’s opinion that the review was able to be “conducted thoroughly and fairly” (Uelese) without this evidence being elicited from the witness by Counsel for the Applicant during examination in chief and without an adjournment.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides 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.
Section 501(6) of the Act provides that:
(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))…
A “substantial criminal record” is defined by s 501(7) of the Act as follows:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…
Section 501(7A) of the Act provides clarification when a person is sentenced to concurrent sentences of imprisonment:
(7A)For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Section 501CA of the Act further 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; and
(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.
MINISTERIAL DIRECTION 65
Section 499(1) of the Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Act states that “A person or body must comply with a direction under subsection (1).”
On 22 December 2014, the Minister for Immigration and Border Protection made a direction under s 499 of the Act, named “Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction no. 65). Paragraph 6.1 of Direction no. 65 sets out the “Objectives of the Migration Act”, with paragraph 6.1(3) being relevant to the Reviewable Decision which is currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction no. 65 provides general guidance as follows:
(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.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction no. 65 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal:
(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 the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction no. 65, the decision-maker (in this case the Tribunal) must take into account the primary considerations in Part C of Direction no. 65, with regard to the specific circumstances of the case (paragraph 13(1) of Direction no. 65). Specifically, paragraph 13(2) of Direction no. 65 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
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.
Paragraph 14 of Part C of Direction no. 65 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These 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.
Paragraph 7(1)(b) of Direction no. 65 outlines how a decision-maker is to exercise its discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a)…
b)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.
Further guidance as to how a decision-maker is to apply the considerations in Direction no. 65 can be found in paragraph 8 of Direction no. 65 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens 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.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant was convicted on 6 July 2016 in the Joondalup Magistrates Court for the criminal offence of “steal motor vehicle and drive recklessly” for which he received a term of 13 months imprisonment (Exhibit R1, G3/11; Exhibit R1, G13/44). Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a “substantial criminal record”. Section 501(7)(c) of the Act provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
Consequently, the Applicant does not pass the character test.
The Applicant did not seek to challenge the Reviewable Decision on the basis that the Applicant passed the character test. However, the Applicant submitted that extenuating circumstances surrounding the history of his offending constituted factors to be taken into account in determining the risk that the Applicant would reoffend and whether there was “another reason” why the Reviewable Decision should be revoked. The Tribunal has considered those submissions further below.
IS THE TRIBUNAL SATISFIED THAT THERE IS ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian Community (13.1)
Paragraph 13.1(1) of Direction no. 65 provides that when decision-makers are considering the protection of the Australia community they:
… 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 noncitizens 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…
Decision-makers should also give consideration to (paragraph 13.1(2) of Direction no. 65):
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 Applicant made two central submissions in relation to the Applicant’s offending and the protection of the Australian community. In summary, these submission were that:
(a)The Applicant’s home life has impacted on his offending. The Applicant lost his 22 year old son in a car accident in 2009. This impacted the Applicant psychologically, contributed to a resumption and escalation in his offending and caused problems in the Applicant’s home life. The Applicant was evicted from the family home after an incident with his wife in 2011. He was homeless until 2016. This period coincided with an increase in the number of offences committed by the Applicant and was a major factor in his offending. The Applicant has now reconciled with his wife. If the Reviewable Decision were revoked he would return to the family home and live with his wife who would help to care for him.
(b)The Applicant has not been cooperative in taking his medicine to bring his mental health condition under control. This is a major factor in his offending. If the Reviewable Decision is revoked, the Applicant, his wife and his oldest daughter will work together to ensure that the Applicant takes his medicine to bring his mental health conditions under control.
The Applicant submitted that as a result of these issues, if the Reviewable Decision was revoked, the risk of the Applicant reoffending would be diminished. The Applicant acknowledged that the risk of reoffending would not be negligible. However, the Applicant submitted that taking into account the diminished risks and other factors, it was appropriate if the Applicant be given a “last chance”.
Nature and seriousness of the conduct (13.1.1(1))
Section 13.1.1(1) of Direction no. 65 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
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 repeated 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;
Since arriving in Australia in 1991, the Applicant has been convicted of over 100 offences in the Australian courts.
These offences include (but are not limited to):
·ten convictions for burglary;
·nine convictions for stealing and five convictions for stealing a motor vehicle;
·five convictions for supplying prohibited drugs (including heroin) and one conviction for possessing methamphetamine with intent;
·three convictions for possessing or using prohibited drugs, and a further conviction for possessing a smoking utensil used for smoking a prohibited drug;
·20 breaches of court imposed orders including nine breaches of bail and bail undertakings; four breaches of community based orders; six breaches of suspended imprisonment orders; twice failing to appear in court on a first instance warrant;
·six breaches of a violence restraining order and one breach of a police restraining order;
·seven convictions for trespass and entering a premises contrary to a barring notice or being unlawfully on premises;
·one count of assault occasioning body harm;
·one count of threat to injure, endanger or harm;
·numerous traffic and vehicle related offences including: driving under the influence of alcohol, driving without a motor vehicle license or driving without authority, careless driving, reckless driving, failing to stop after an accident, refusing a blood test, failing to stop after a traffic accident where property was damaged, having an unlicensed vehicle, having a false number plate or failing to display a number plate; and
·numerous convictions relating to obstructing public officers, failing to comply with requests for personal details, giving a false name and/or address, hindering police, resisting arrest, failing to stop when called upon, and a conviction for attempting to defeat/pervert the course of justice.
The nature of the Applicant’s offending was summarised by the Respondent in its Statement of Facts, Issues and Contentions (para 30 of Exhibit R2) as follows:
In considering the nature and seriousness of the applicant’s conduct to date, the respondent contends that the protection of the Australian community weighs heavily against a favourable exercise of the power in section 501CA(4)…
The Respondent submitted that the protection of the Australian community weighed heavily against favourable exercise of power under the Act because:
(a)the Applicant has an extensive offending history;
(b)the Applicant has been sentenced to numerous terms of imprisonment on separate occasions for his offending;
(c)the Applicant has been convicted of numerous violent offences including assault occasioning bodily harm, breaches of violence restraining orders and threats to injure, endanger or harm; and
(d)the Applicant has had three warnings that if he committed further offences his visa may be cancelled.
(Exhibit R2, paras 30-36)
In relation to the Applicant’s history of offending, the Respondent submitted:
…Given the totality and repeated nature of the applicant’s offending, the respondent contends that the applicant has demonstrated a persistent disregard for the laws of Australia. The respondent contends that the applicant’s offending has increased in seriousness since his arrival…
(Exhibit R2, para 31)
In particular, the Respondent submitted that the seriousness of the offences was demonstrated by the Applicant’s most recent convictions on 6 July 2016. These convictions included:
(a)breach of suspended sentence (original suspended sentence for stealing a motor vehicle) – eight months imprisonment;
(b)no authority to drive – suspended – $1500 fine and disqualification from driving for nine months;
(c)reckless driving (inherently dangerous) – $1000 fine and disqualification from driving for 18 months;
(d)no authority to drive – suspended – $1500 fine and disqualification for driving for nine months;
(e)no authority to drive – suspended – $1500 fine and disqualification from driving for nine months;
(f)steal motor vehicle and drive recklessly – 13 months imprisonment;
(g)stealing – $200 fine;
(h)without lawful excuse trespassed on a place – two months imprisonment;
(i)steal motor vehicle to use with the consent of the owner – three months imprisonment; and
(j)steal motor vehicle – six months imprisonment.
(Exhibit R2, para 31)
The Respondent noted that the Judge’s sentencing remarks indicate that at the time of these offences the Applicant was on a suspended sentence for an earlier offence of stealing a motor vehicle and that that earlier offence had been committed whilst the Applicant was on bail (Exhibit R2, para 32; Exhibit R1, G14/52-55).
In considering the nature and seriousness of the Applicant’s criminal conduct to date, the Tribunal notes the Applicant’s convictions for violence including “assault occasioning bodily harm” (13.1.1(1)(a) of Direction no. 65), as well as threatened violence, and multiple breaches of violence restraining orders. The Tribunal further notes:
(a)the Applicant’s eight offences against police (including resisting arrest, failing to obey the orders of public officers and failing to comply with requests for personal details, hindering police and attempting to pervert the course of justice) when they have been performing their public duties (13.1.1(1)(b) of Direction no.65);
(b)the imposition of numerous terms of imprisonment by the courts totalling over 16 and a half years (Exhibit R2, para 33), in addition to those outlined above including (but not limited to) (13.1.1(1)(c) of Direction no. 65):
(i)six months fixed term on each of two counts of “supply prohibited drug (heroin)” (20 June 1995);
(ii)nine months with an additional three months for two counts of “supplying prohibited drug” (conviction- 13 September 1995, sentence on appeal – 15 November 1995);
(iii)twelve months suspended sentence for “burglary and commit offence (habitation)” (22 September 1997);
(iv)two terms of three month suspended sentences for “providing false name and/or address” and “unlawfully on premises” (22 September 1997);
(v)three months sentence for “driving under the influence of alcohol” (22 May 1998);
(vi)15 months sentence for “assault occasioning bodily harm” (22 May 1998);
(vii)two years total sentence for two counts of “burglary with intent (habitation)” and five counts of “burglary and commit offence (habitation)” (5 June 1998);
(viii)12 months sentence for “burglary and commit offence (habitation)” and three months consecutive sentence for “stealing” (7 August 1998);
(ix)12 months sentence for “burglary and commit offence (habitation)” (12 December 2001);
(x)two years imprisonment for “amphetamine possession with intent” (7 December 2005);
(xi)eight months suspended sentence for “threats to injure, endanger or harm any person” (17 August 2012);
(xii)seven months suspended sentence for “breach of bail granted” (27 November 2013); and
(xiii)eight months suspended sentence for “steal motor vehicle” (24 April 2015).
(Exhibit R1, G13/44-50)
(c)the frequency, and cumulative effect of the Applicant’s repeated offending over a 25 year period, which commenced within the first three months of him arriving in Australia (in 1991) when he was 29 years old (13.1.1(1)(d) and (e) of Direction no. 65); and
(d)the numerous further offences committed by the Applicant after receiving three clear warnings in letters dated 1996 (Exhibit R1, G27/123), 1999 (Exhibit R1, G28/125) and 2007 (Exhibit R1 G29/127) to the effect that further offending may result in his deportation or the cancellation of his visa, as detailed above (13.1.1(1)(g) of Direction no. 65). In the Tribunal’s opinion, continuing to offend after receiving these warnings demonstrates a lack of insight into his offending.
The Applicant did not submit that his offences were not serious or that he did not have a significant offending history. However, the Applicant did submit that during the period between October 2002 and early 2011 there was “a dramatic reduction in the frequency of offending” (Transcript, p 63). The Applicant conceded that his offending increased in frequency from July 2011 through to 2016 but that this could be explained by his eviction from the family home in 2011 and the problems caused by his homelessness. The Applicant submitted that during this period between 2002 and July 2011, other than a number of offences which appeared to be connected to his arrest for amphetamine possession with intent, the Applicant had only been convicted of minor traffic offences of careless driving and failing to stop after a traffic accident.
The Tribunal accepts that there was a period between 2002 and 2011 where the Applicant committed fewer offences. However, the Tribunal notes that at least one of those offences was serious enough to carry a two year imprisonment sentence – “amphetamine possession with intent”. That conviction in 2005 was not his first sentence of imprisonment and followed his conviction for over 40 offences since arriving in Australia in 1991. In addition, the Tribunal notes that the Applicant was serving a prison sentence for at least part of the period between 2005 and 2011.
The Respondent submitted that:
…the applicant has a, in our submission, very consistent history of offending. Whilst it may be pointed to by the applicant’s counsel that between 2002 and 2011 there was a relatively quiet patch, that’s only the case when compared to a very consistent history of multiple offences every year.
(Transcript, p 73)
The Respondent pointed in particular to the comments of the sentencing judge in relation to the imprisonment sentence for “amphetamine possession with intent” in the District Court of Western Australia on 7 December 2005. In those remarks District Court Judge French noted that the Applicant was “clearly actively involved” in selling methamphetamine on the evening he was arrested and that “the only appropriate disposition is a term of imprisonment” (Exhibit R1, G15/58).
The Applicant submitted that the death of his son in 2009 was a significant factor in his mental deterioration and his offending. While there is limited evidence to support this contention the Tribunal is prepared to accept that this was a traumatic and life-altering event of the Applicant. However, the Tribunal is not satisfied that this event is sufficient to explain or excuse a history of offending which spans 25 years. While the Tribunal notes the fact that there was a period in the Applicant’s offending history where his conviction rate slowed, having regard to his full offending history and the serious nature of a significant number of those offences the Tribunal does not find that this mitigates the nature and seriousness of the Applicant’s conduct during his time in Australia.
Weighing up the above considerations, the Tribunal finds that the nature and seriousness of the Applicant’s offending weighs strongly against the revocation of the cancellation of his visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1.2)
A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction no. 65 as follows:
(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.
Paragraph 13.1.2(2) of Direction no. 65 further provides:
(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 rehabilitative courses to be undertaken).
Nature of harm to individuals or the Australian community
Applying paragraph 13.1.2(2)(a) of Direction no. 65, the Applicant has a history of offending over a 25 year period, with offences including serious drug offences, violence (assault), threats of violence, offences against public officers and serious property offences. The Applicant also has a history of increasingly serious driving offences including reckless driving and leaving the scene of an accident on more than one occasion. He has repeated offences for driving while unlicensed.
There is a real risk that should he commit similar offences in the future, that a member of the Australian community may be seriously injured. As outlined earlier in this decision, the Applicant has also committed a broad range of other offences including, but not limited to, property offences, drug offences, driving offences and breaches of court orders.
Further the Tribunal notes that a number of the Applicant’s offences involved breaches to violence restraining orders beginning in July 2012 and continuing through until August 2015. The evidence of the Applicant, his wife and his daughter was that the Applicant has a history of making threats against his family members, including threats of violence. There is a real risk that should he commit similar offences in the future, a member of his family may be seriously injured.
The Tribunal agrees with the Respondent’s submission that:
…the applicant is a serious repeat offender with an extensive criminal history spanning over 25 years. Given the broad range of the applicant’s offences, the nature of harm to victims if the applicant were to reoffend in the future is serious, and could involve significant physical, financial and psychological harm to members of the Australian community.
(Exhibit R2, para 38)
Risk of re-offending
As noted above, Counsel for the Applicant submitted that there were two main factors impacting on the risk the Applicant posed to the Australian community. The first of these was that the Applicant’s home life had impacted on his offending and the changes in his home circumstances would reduce the risk to the Australian community of him reoffending. The second of these was the Applicant’s mental health and the prospect of him managing his mental health with the assistance of his wife and daughter.
The Applicant submitted that two events in particular had impacted the Applicant’s offending. The first was the death of his son in 2009 in a car accident. The second was the breakdown of the Applicant’s marriage in 2011 which led to him becoming homeless. The Applicant’s submission was that while there was no direct evidence linking the death of his son to his offending behaviour, the evidence suggested that it would have been a factor in the decline in his mental health which led to an increase in his offending.
In relation to the breakdown of the Applicant’s marriage, Counsel for the Applicant pointed to discharge summaries from Graylands Hospital from the period from March 2012 and September 2015 where there were repeated notations that the Applicant was admitted for mental health treatment in circumstances of homelessness (Exhibit A5). The Applicant also pointed to evidence from the Applicant’s wife that she and the Applicant reconciled in 2016 and that she was prepared to welcome him back into the family home and take care of him in the event that the Reviewable Decision was revoked (Exhibit A3).
The Tribunal notes that in her oral testimony the Applicant’s wife, Ms Do, noted that she had obtained an order in 2011 against the Applicant but had allowed him to return shortly after that order was made. After returning to the home the Applicant’s behaviour deteriorated and Ms Do obtained another order to stop the Applicant coming to the house. She went on to state:
But things got bad because of his heavy addiction and so in the end I couldn’t keep the house because of the financial burden, so I sold that house and got another place to live, and now that he’s away in custody he has shown that he understands what he has done, and over the telephone conversation with him I know that he want to change and he want to redeem himself, so I’m thinking about – now I’m thinking about having him back to give him another chance…
The house being sold, so I was under less financial pressure, and the children are older and grown-up and they done so well, so now I’m thinking about having him back so I am supporting him in this application and I’m really thinking about having him at home and I will care for him while he’s with me (Transcript, p 55).
In relation to the impact of the Applicant’s mental health on his offending and his likelihood of reoffending, Counsel for the Applicant submitted that historically the Applicant has not been cooperative in taking his medicine to bring his mental health condition under control. This is a major factor in his offending. Counsel for the Applicant submitted that the change in the Applicant’s family circumstances meant that he would have the support of his wife and daughter to ensure he received proper mental health treatment, and in particular would take medication to manage his schizophrenia.

The Tribunal notes that the Applicant’s daughter, Ms Le, testified that:
I hope that my father will be released back into the care of my mother and our family. I live five minutes away from my mother.
I undertake to provide any financial means necessary for my father to recover from his mental illness and assimilate back into life in Western Australia.
I undertake to provide assistance to my mother to ensure my father takes all prescription medication and follows all medical recommendations (Exhibit A4, paras 41-43).
The Applicant submitted that as a result of these issues if the Reviewable Decision was revoked the risk of him reoffending would be diminished. The Applicant acknowledged that the risk of reoffending would not be negligible, however, the Applicant submitted that taking into account the diminished risks and other factors it was appropriate if the Applicant be given a “last chance”.
The Respondent submitted that:
To the extent the applicant’s wife and daughter say that they would ensure the applicant takes his medication and doesn’t commit crimes, we would submit… it’s a statement which should be given little weight, in particular notwithstanding that the applicant is currently in detention, his statement reveals that he hasn’t taken any medication currently. The applicant made similar representations in 1999 and 2006. In particular, that he would live with his family to help him curb his drug use and offending. On neither of those occasions was the applicant’s family successful in curbing the applicant’s offending behaviour or drug use (Transcript, p75).
The Tribunal acknowledges the length of the Applicant’s marriage. He and his wife were married in 1991. While the Tribunal does not question the commitment of the Applicant’s wife and daughter to help the Applicant, the Tribunal agrees with the Respondent’s submission that the Applicant’s history of offending suggests that such efforts are unlikely to be successful. While a significant amount of the Applicant’s offending occurred during the period in which he was not living in the family home (between 2011 and 2016) his offending began and continued for many years while he was living with his family and had their support. The presence of this support is noted, for example, in the sentencing comments from the District Court of Western Australia on 7 December 2005 (Exhibit R1, G15/58).
While there was some debate among the parties about when the Applicant was formally diagnosed with schizophrenia it was clear from the evidence of the Applicant and his wife that he was aware of his illness prior to violence orders being issued and he had been prescribed medication which he was not taking. His behaviour as a result of his failure to take his prescribed medication is one of the events which led to him being sent from the family home. Further, when he was readmitted to the family home following the initial violence order he continued with behaviour that led to his wife seeking a further order.
This history suggests that despite their best intentions, the Applicant’s wife and daughter have been unable to influence the Applicant’s behaviour or to ensure that he takes prescribed medication and seeks mental health treatment which might assist him in managing his behaviour and preventing reoffending.
Applying paragraph 13.1.2(2)(b) of Direction no. 65, the Tribunal considers that there is a real and unacceptable risk that the Applicant will reoffend. This is suggested by his history of continued offending, which has been undeterred by the imposition of fines, suspended sentences and custodial sentences of imprisonment. It demonstrates a continued disregard for the law, and the likelihood of him re-offending, should he be given a further chance to be released back into the Australian community, as a real possibility.
There is no evidence before the Tribunal that the Applicant’s mental health condition has been appropriately treated and stabilised, nor is there any evidence that he will cease drug use which contributes to his mental health issues and is linked to his offending behaviour. Indeed, the Applicant’s criminal history (Exhibit R1, G13/44-51) shows consistent drug-related offending up until his most recent prison term and subsequent immigration detention. Further, the discharge summaries of his treatments at Graylands Hospital evidence admissions for “drug induced psychosis” on 10 February 2013 and 20 September 2015 and note a history of “drug abuse – amphetamine” (Exhibit A5).
The Applicant has been diagnosed with schizophrenia (Exhibit A1 and Exhibit R1, G11/52). The Applicant states that he is currently not taking medications and that he will be compliant with his medications if released into the community (Exhibit A1). Although the Applicant’s stated intentions are positive, if he continues to use drugs or fails to seek or comply with mental health treatment, there may be a negative impact on his mental health and this may increase the likelihood of his re-offending. This is consistent with the sentencing comments of Magistrate Smith in July 2016 (Exhibit R1, G14/53) and the pre-sentencing report prepared for that case (Exhibit R4, p 22).
Given his likely mental health treatment needs and lack of insight into his offending, the Tribunal is concerned that there is a likelihood of the Applicant re-offending, including with violent or dangerous behaviour for which he has been sentenced in the past, should he be given a further chance to be released back into the Australian community.
At the hearing when asked whether he had put in place any arrangements to see the mental health specialists if he were to go back in to the community, the Applicant stated:
First of all I’m thankful for the treatment that I will be receiving, but I’m thinking of the financial aspect of medication and treatment I don’t want to be put the burden on the Australian government because it would cost money to provide me treatment and medication. So if I get good news from my family then I’m happy and I be fine, but I know that I have to go see doctors for checkup and it’s good to be taking care of your health and get out – in his words was used – get out of that unit, it’s good, by yourself, not relying on treatment or medication (Transcript,
p 44).
The Applicant’s statement was consistent with earlier remarks he made during cross-examination to the effect that he doesn’t need medication when he is in contact with his family because this makes him happy. His statements evidence both a lack of insight into his mental health issues and a lack of commitment to seeking help and treatment for the management of those issues in the event the Reviewable Decision is revoked and the Applicant returns to live in the community.
A pre-sentencing report, prepared in the context of the sentencing of the Applicant for the offences he was convicted of on 20 May 2016 in the Joondalup Magistrate’s Court, notes in relation to Mr Le’s offending “previous sentences of imprisonment, community-based dispositions and fines have done little to deter him from further offending” (Exhibit R4, p 20).
The pre-sentencing report refers to a psychiatric report (which is not included in the materials before the Tribunal). According to the pre-sentencing report, the psychiatric report identifies the following risk factors and treatment needs:
mental illness, diagnosis of schizophrenia in 2011
lack of insight into his mental health
co-morbid sub substance abuse
lack of community sport
(Exhibit R4, page 21)
The pre-sentencing report goes on to note:
The Psychiatric Report identifies his diagnosis of schizophrenia and substance use as his main triggers to his offending, along with his lack of insight into his mental health and lack of positive community supports. Mr Le shows no insight into his mental health or his previous substance use and how these are linked to his offending. He has minimal protective factors in the community and has no stable accommodation at this juncture. Mr Le has been non-compliant in the past with his mental health treatment and with community dispositions and has continued to re-offend regardless of any penalties imposed on him by the Court, making it difficult to recommend him as suitable for a Community Order.
(Exhibit R4, page 22)
Additionally, when sentencing the Applicant on 6 July 2016 to a further custodial term of imprisonment, Magistrate G Smith made the following comments in determining that the Applicant should be sentenced to a total of two years imprisonment (Exhibit R1, G14/53). These comments are relevant to the assessment of the Applicant’s risk of re-offending:
[Mr Le] is a 55-year-old man. He does not have youth on his side. He has a very long and serious record and has been to prison on many occasions. He is said to suffer from a mental illness and I accept there is a connection between that and his offending, and it is something which must be taken into account.
However, his position in that regard must be looked at in light of the fact that he apparently continues to take deleterious drugs when he clearly shouldn’t, and the pre-sentence report says that he has been non-compliant in the past. In other words, he doesn’t have any insight into his behaviour, and his mental illness is something that could be treated and controlled if it just had Mr Le’s cooperation which apparently he hasn’t been willing to give.
I have the benefit of the pre-sentence report which outlines a number of matters which I’ve taken into account. There is also a psychiatric report which confirms Mr Le suffers from a mental illness. The presentence report says that he’s not suitable for community supervision. The psychiatric report confirms that Mr Le tends to be non-compliant with treatment and that there is a moderate or high risk of him reoffending.
That would be especially if he continues to take illegal drugs and if he continues to reject treatment for his mental health issues.
…Imprisonment is a sentence of last resort but, in my view, no other disposition is appropriate or available.
During the hearing the Respondent put to the Applicant that he had previously undertaken to stop offending. For example, it was put to the Applicant that in the context of the consideration of deportation by reason of his conviction for “assault occasioning bodily harm” in May 1998, he was interviewed by the Department (in April 1999). During that interview when he was asked whether he would offend again he stated:
I never want to offend again. If I offend again I would rather die than have my children see me in prison.
(Exhibit R1, G 26/109)
He expressed similar views in 2006 (Exhibit R1, G25/102).
At the hearing, the Applicant expressed remorse for his offending and asked repeatedly for a “last chance”. For example, under cross-examination, the Applicant stated:
…I feel very bad, you know, but before I involved drug, still doing, you know. Heroine can’t get out. I learnt that way…
…I did not know at that interview that it was such an important implication for my life, but now I am speaking right here, and I am asking you for another chance. All I am asking you to give me one last chance, one single last chance. And if I a further offence, then I will be happy to be deported from Australia. But please give me a chance to lead my – the rest of my life with my wife, to show that I’m dedicated to her and to our marriage (Transcript, pp 34-34).
The Applicant also stated:
The past is the past. That not change and whatever has happened is well documented here and evidenced here in this tribunal – at this hearing so all I want to say is please do give me a last chance…
(Transcript, p 52)
Whilst the Applicant may have genuinely stated an intention at the hearing to change if given “one last chance”, he has made similar promises in the past, for example in the context of the warnings he was issued by the Minister in 1999 and 2007. He was unable to keep these promises to remain law-abiding, and indeed, he committed numerous offences after providing assurances that he was rehabilitated and would not offend in the future. This was despite having received multiple warnings that further offending may jeopardise his immigration status in the future. It was also despite having the support of his family at that time.
Further, the Applicant continued to offend and re-offend while being given opportunity within the justice system to curb his offending behaviour. This is evidenced in his numerous offences for breach of bail conditions, community service orders and suspended sentences.
The Tribunal can give little weight to the intentions of the Applicant, because he has made similar promises in the past in response in which he has not been able to follow through with and he has demonstrated an ongoing inability to engage with his mental health issues.
In all the circumstances, the Tribunal is satisfied that there remains a moderate to high risk of the Applicant reoffending. There is a significant risk that the Applicant would commit further offences if he were to be given a further opportunity when living in the community. This weighs strongly against the revocation of the cancellation of his visa.
Second primary consideration: The best interests of minor children in Australia (13.2)
Paragraph 13.2 of Direction no. 65 provides:
(1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
As noted above, the Applicant has three adult children, all now Australian citizens. His eldest daughter, Tuyen Thi Le, has two sons aged 13 and nine years old. His younger daughter has one child and is pregnant with a second (paragraphs 13.2(2) and 13.2(4)(e) of Direction no. 65).
There is information before the Tribunal that the children of each daughter’s interests differ, so the Tribunal will proceed to consider the interests of the children of each daughter separately (paragraph 13.2(3) of Direction no. 65).
Paragraph 13.2(4) of Direction no. 65 continues on to outline the factors that a decision-maker must consider when determining the best interests of a child:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Applying paragraph 13.2(4)(a) of Direction no. 65, the Applicant is not the biological father of any of the minor children. There is no evidence that he has any responsibility for the care of his minor grandchildren.
In relation to his youngest daughter’s child, the Applicant stated in his evidence that he is not in contact with his youngest daughter because “she [sic] saddened by the separation of her parents” (Transcript, p 36) and he does not have any contact with her child. There was no evidence as to the age of this child. There was no evidence before the Tribunal to suggest that the Applicant would have contact with his youngest daughter or her children in the event the Reviewable Decision is revoked.
In relation to his oldest daughter’s children, the Applicant stated that:
…I’m loving them, and I cherish them a lot. So every now and then I come and visit them, or bring them gifts. And even when I was in jail, I sent card to them.
(Transcript, p 35)
The Applicant indicated that he had not seen his grandchildren in the last year while he had been in detention but that he had spoken to them. He indicated that “I have no courage to tell them that I’m being in detention or in prison. I just tell them that I’m living far away and I’m on holiday” (Transcript, p 35). The Applicant indicated that he speaks to his grandchildren on average once a week from detention.
The Applicant’s oldest daughter gave evidence. She indicated that the last time the Applicant saw the children in person would have been in 2012. This was when they were around two and six years old (Transcript, pp 60-61).
When asked whether she had any concerns about her son’s engagement with her father given his past history of offending, Ms Le stated:
I don’t know when they small, but they get along with him and all, but I don’t tell them much. They ask where he is and I say said that he live far, and I said when you’re older I will tell you more. That’s all I say (Transcript, p 60)
When asked what she thought the impact on her sons would be if her father were removed to Vietnam, she stated:
I don’t think they will be happy because they don’t get to, you know, talk to him or, you know, see him (Transcript, p 60).
There is no other evidence as to the views of the grandchildren (paragraph 13.2(4)(f) of Direction no. 65).
Applying paragraph 13.2(4)(b) of Direction no. 65, the Tribunal notes that the Applicant’s grandchildren by his oldest daughter are now 13 and nine years old. There is no evidence as to the age of his youngest daughter’s child. However, the Tribunal understood that the child was younger than its cousins. Despite the stated intentions of the Applicant to reform so that he can have a relationship with his family, including his grandchildren, the Tribunal is not satisfied that the Applicant will be able to carry out these intentions in order to play a positive role in the future, given his extensive criminal history and previous promises to reform. If he continues to offend as he has over the last 25 years, he will not be a positive role model for his grandchildren.
Similar considerations apply when considering paragraph 13.2(4)(c) of Direction no. 65. The Applicant has a long history of offending, including serious drug offences and for breaching restraining orders taken out by the Applicant’s wife, who is the grandmother of the children. If this conduct continues, it will most likely have a negative impact on the Applicant’s grandchildren.
Applying paragraph 13.2(4)(d) of Direction no. 65, the Tribunal notes that the Applicant has had no contact with his younger daughter’s child and has only had telephone contact and written communication with his oldest daughter’s children in the period since 2012. The Tribunal notes that there is little contemporary evidence as to how the Applicant would maintain contact with his grandchildren in the event of separation. However on the evidence available, it is reasonable to assume that the Applicant would be able to maintain his current method of contact with the children, which is by telephone.

The Respondent submitted that:
…the applicant would have access to the same social, welfare, and medical services and state protection as other Vietnamese citizens in Vietnam.
Whilst the applicant may suffer short term hardship in resettling in Vietnam, the respondent contends that the applicant lived in the country for thirty years and there is no substantial language or cultural barriers for the applicant to overcome.
(Exhibit R2, paras 60-61)
The Applicant further submitted at the hearing that:
…whilst it is a relevant consideration that the same level of supports might not be available, there’s currently no evidence before the tribunal that’s been led in respect of what mental health supports or drug rehabilitation supports would be available in Vietnam or in the applicant’s hometown.… whilst the applicant may suffer some short term hardship in re-settling in Vietnam, he lived there for a period of – I think it was 26 years, and there’s no language or cultural barriers. There’s no reason that he wouldn’t be able to obtain employment in the country, having previously worked in the country, and previously worked in Australia as well. And that factor, in our submission, does not outweigh those primary considerations.
(Transcript, p 79)
The Applicant has lived in Australia since 1991, arriving when he was 29 years of age. After living for such a long time in Australia, he would undoubtedly face some difficulty in re-establishing himself in Vietnam, but any difficulty would not be insurmountable. As noted above, he does have siblings living in Vietnam and while he has not maintained contact with them, he may be able to do so if he chooses to attempt to locate them.
The Applicant is now 57 years of age. He appears to be in generally good physical health, although there is evidence that he has been treated for Hepatitis C. He gave evidence that this is an ongoing condition.
The Tribunal accepts that the Applicant has had significant health issues. He has been diagnosed with schizophrenia. There is also a mention in the available medical records of an attempted suicide although the details of the circumstances of that event are not available material for the Tribunal. The Applicant gave evidence that he is not currently taking medication or receiving treatment for mental health issues. It was unclear from his evidence whether this was because it hadn’t been provided or because he didn’t feel he needed treatment. He had seen a doctor for his Hepatitis C and was waiting for medication (Transcript, p 42). When asked about whether he was seeing a doctor for his mental health issues, he indicated that his mental health had “been discussed, but nothing’s happening” (Transcript, p 42). He indicated he was being emotionally supported by his family and that this had “been very helpful in terms of helping me with my medical condition” (Transcript, p 41).
Notwithstanding a lack of current medical evidence going to the Applicant’s treatment needs, the Tribunal accepts that based on his offending history and the medical history available it is likely that the Applicant would need, or would benefit from, ongoing treatment for mental health and drug abuse issues. The Tribunal has taken this into account in assessing the likely impediments faced by the Applicant if returned to Vietnam.
As the Applicant lived in Vietnam until the age of 25 years when he left as a refugee, there would be minimal, if any, language and cultural barriers for him to overcome if he returned. The Applicant previously worked in Vietnam on a fishing boat and selling fish and, while the Tribunal accepts that the Applicant may face challenges re-establishing himself and obtaining work, there is no evidence before the Tribunal to suggest that he would be unable to work on his return to Vietnam.
Further, as discussed below the Tribunal finds that the Applicant is a citizen of Vietnam. In the event he is provided with documentation recognising his citizenship and allowing him to return to Vietnam. There is no evidence to suggest that he would not have the same access to social, economic and medical support as other Vietnamese citizens.
The Tribunal notes that no evidence was tendered other than the oral statements of the Applicant and his wife and daughter as the conditions that the Applicant may face on return to Vietnam, in particular the availability of appropriate mental health and drug treatment programs. Given this is a matter that the Tribunal must assess in considering the application to revoke the cancellation decision, it would have assisted the Tribunal if the parties had provided such information.
In the absence of this information, the Tribunal has considered the available country information produced by the Department of Foreign Affairs and Trade. The Tribunal notes that travel advice from the Department of Foreign Affairs and Trade states that in relation to medical facilities:
The standard of medical facilities and care varies.
Medical facilities and care at most public hospitals, especially outside Hanoi and Ho Chi Minh City, are poor.[6]
[6] Vietnam Travel Advice, Department of Foreign Affairs and Trade, >
The Department of Foreign Affairs and Trade Country Information Report on Vietnam notes:
The Government provides access to basic health care for all citizens, in both urban and rural areas (see Fig 1 below). Those in rural areas also have access to specialists in urban areas. Funding for health care facilities is based on the number of registered citizens in a particular area (see Household Registration). However, the Government has taken measures to increase relative healthcare expenditure in rural and remote communities in an effort to ensure more even development outcomes across the country. Overall life expectancy in Vietnam is around 71 years for males and 80 years for females[7].
[7] DFAT Country Information Report Vietnam, 21 June 2017, page 6.
The Tribunal accepts that living conditions and health services in Vietnam may not be of the same standard as are available in Australia. However, there is no evidence to suggest that the Applicant would not have the same access to social, economic and medical support as other Vietnamese citizens. Further, the Applicant did not offer any medical evidence to support his claim to be at risk of suicide or mental deterioration specifically because of removal to his home country.
The Tribunal accepts that the Applicant is likely to face impediments and hardship if returned to Vietnam. The Tribunal accepts that there is a risk that the Applicant’s mental health may deteriorate and that he may continue to use drugs which, based on the historical health information available, exacerbate his mental health issues. However, the Tribunal notes its findings above that, based on his own testimony and taking into account his history, there is a real risk that the Applicant will not avail himself of mental health services in Vietnam. This risk also exists if he remains in Australia.
For these reasons, in all of the Applicant’s circumstances, the Tribunal accepts that the impediments if removed are not insignificant and on balance weigh against the non-revocation of the Reviewable Decision. However, also for the reasons outlined above, the Tribunal gives this consideration less weight than other considerations.
‘Statelessness’ and the risk of indefinite detention
As noted above, paragraph 14(1) of Direction no. 65 states that:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant.
The Applicant submitted that an ‘other consideration’ which was relevant to the Applicant’s circumstances is that the Applicant has no identification to prove his Vietnamese nationality and may be prevented from returning to Vietnam. The Applicant submitted that he was “effectively stateless”. The Applicant’s lack of documentation to enable him to establish Vietnamese citizenship and return to Vietnam meant that if the Reviewable Decision is not revoked, the Applicant will be indefinitely detained in immigration detention in Australia (Exhibit A1, paragraph 22 and 27).
The Tribunal accepts that the question of whether a decision not to revoke the Reviewable Decision would result in the Applicant being indefinitely detained is an “other consideration” which is relevant to the Applicant’s circumstances.
In his application form, the Applicant states his citizenship at birth was “Vietnamese” but he is currently “stateless” because he left Vietnam when he was very young and does not have a Vietnamese passport, valid Vietnamese birth certificate or family registration.
The Applicant submits that he is “effectively stateless” with no right or automatic entry to any country now that his permanent visa has been cancelled. As well, given he has no Vietnamese identity card and no family registration entitlement in Vietnam, he cannot return there and is not eligible for a Vietnamese passport.
In support of the Applicant’s claim, the Applicant offered advice from an expert witness, Mr Hoang Duc Phu, a Vietnamese Attorney at Law. Mr Hoang’s curriculum vitae indicates the following experience:
over 17 years of practice experience in many fields including accounting, sale management, corporate management, internal control, internal audit, quality management – ISO, compliance, in-house lawyer and legal services (Exhibit A6, p 7).
Under his expertise, he lists a range of general areas of practice including “citizenship and migration” (Exhibit A6, p 7).
The Applicant asked Mr Hoang to address the following questions in his advice (Exhibit A6, p 3):
1Under current Vietnamese law, is Mr Le a Vietnamese citizen? If Mr Lee is no longer a Vietnamese citizen, please identify the law by which he is no longer a Vietnamese citizen.
2If Mr Le is no longer a Vietnamese citizen, can he regain his Vietnamese citizenship? If so:
c)what is the process and chance of success of an application by Mr Le to regain his Vietnamese citizenship?
d)Please identify the Vietnamese law which applies in answering this question.
(2)If Mr Le is no longer as Vietnamese citizen and is unsuccessful in an application to regain Vietnamese citizenship:
a)Is there a different way under Vietnamese law which would permit Mr Le to return to live in Vietnam for the rest of his life?
b)Please identify any Vietnamese law which applies in answering this question.
Mr Hoang’s letter of advice states as follows (as officially translated) (Exhibit A6, p 10):
1.Under the current Vietnamese citizenship law, Mr. Tiep has no foundation for recognition as [sic] Vietnamese citizen because Mr. Tiep has no papers to prove his Vietnamese citizen [sic] in accordance with Article 11 of [sic] Law on Vietnamese Nationality 2014, namely one of the following papers can prove the Vietnamese nationality:
a)Birth certificate: in the case in case the birth certificate does not clearly state the Vietnamese nationality of the holder, papers proving his/her parents as Vietnamese citizen are required.
b)Identification card;
c)Vietnamese passport;
d)Decision permitting the naturalisation in Vietnam, decision permitting the restoration of Vietnamese nationality, decision recognizing [sic] the adoption of a foreign child, and decision permitting a foreigner to adopt a Vietnamese child.
2.In case where Mr. Tiep has no papers to prove his Vietnamese citizen as stipulated by Article 11 of Law on Vietnamese Nationality 2014, he shall make registration with overseas Vietnamese representative missions to acquire recognition as Vietnamese citizen in accordance with Article 13 of Law on Vietnamese Nationality. Article 18 and Article 20 of Decree 97/2014/ND – CP of Vietnamese Government with identification papers and papers serving as foundations for determining Vietnamese citizen as required by at the overseas Vietnamese representative missions.
In cases where Mr. Tiep does not provide identification papers and papers serving as foundations for determining Vietnamese citizen and the Vietnamese State Agencies have not grounds for identification of Vietnamese nationality, the Vietnamese overseas representative missions shall reply to such requester that he has no grounds for determination of Vietnamese nationality.
3.If Mr. Tiep has no papers to prove his Vietnamese citizen [sic] in accordance with Article 11 of Law on Vietnamese Nationality 2014 and has no paper confirming recognition as Vietnamese citizen issued by Vietnamese overseas representative missions, he shall not permitted to return to and live in Vietnam for the rest of his life.
These are my legal opinion is based on the Law of Vietnamese Nationality and the relevant guidelines.
(Exhibit A6, p 10)
The Respondent submitted that (Transcript, p 76-77):
in respect of the other considerations… whether or not the applicant would be held indefinitely in detention, whilst the issue of his Vietnamese citizenship is resolved. We would highlight… that there is a difference between not having citizenship and currently not having the documents to verify that citizenship. And certainly it’s not the applicant’s case that he is not a citizen. He was born there and he’s a resident of there and there’s no evidence that he ever lost that citizenship.
We would submit that the applicant is able to apply under Vietnamese law for registration as a Vietnamese citizen, even without supporting documents.
The Tribunal has had regard to the Law on Vietnamese Nationality 2008 (effective 1 July 2009) in considering whether the Applicant is a Vietnamese national. The Law on Vietnamese Nationality provides that a person is considered to have Vietnamese citizenship on the grounds of birth which includes (but is not limited to) where a child is born in Vietnam to Vietnamese citizen parents (Exhibit A10, Articles 14 and 15)[8]. The provisions within that law permit overseas Vietnamese nationals the ability to apply for recognition of their Vietnamese nationality and amendments in 2014 to that law remove all time constraints from overseas Vietnamese nationals applying for recognition of nationality and having a Vietnamese passport issued[9](Exhibit A10, Article 13; Exhibit A7, Article 1).
[8] Law on Vietnamese Nationality (Vietnam), effective 1 July 2009, Ministry of Justice (Vietnam), Articles 14 and 15.
[9] ‘President signs order to announce amended nationality law’ 2014, Viet Nam News Agency, 1 July, Ministry of Justice (Vietnam), Decree: Detailing and guiding a number of articles of the law on Vietnamese nationality (Vietnam), 1 September 2009, art.18, >
The Australian Government recognised the Applicant as a Vietnamese national both in issuing him his original subclass 205 visa which was only available to a defined set of Vietnamese citizens, namely Vietnamese refugees in specified camps, and in issuing him a travel document to return to Vietnam which notes his Vietnamese birth and nationality (Exhibit R7).
In oral evidence, Mr Hoang confirmed that the effect of the 2014 amendments to the Law on Vietnamese Nationality are that those Vietnamese nationals who were nationals at birth but were living overseas, and who had no papers to prove their Vietnamese nationality before 1 July 2009, according to Vietnamese law, retained the Vietnamese nationality (Transcript, p 49; see also the Report on Citizenship Law: Vietnam, Exhibit A8, p 3).
Taking into account these considerations, the Tribunal is satisfied that the Applicant is a Vietnamese national. The Applicant claims that he was born in Vietnam to Vietnamese parents and there does not appear to be any intervening event by which he lost his nationality (such as taking up foreign citizenship) (Exhibit 10, Article 15). The Tribunal accepts that the Applicant did not register with the Vietnamese authorities and never had a Vietnamese passport, but is satisfied on the basis of the available information that this does not, of itself, affect his ability to have his Vietnamese nationality recognised. Therefore, the Tribunal is satisfied that the Applicant remains a Vietnamese national and is required to register with the authorities to have that nationality recognised.
In relation to the evidence of the expert witness, the Respondent submitted that (Transcript, p 76-77):
He refers to- in paragraph noting ‘in cases where’ he refers to the situation only where a person doesn’t have identification papers serving as a foundation for identification, and the Vietnamese State agencies have no grounds for identification of Vietnamese nationality.
In that respect, his evidence was inconsistent and confusing, as to the second part of that, whether the Vietnamese State agencies would be able to find or currently even have evidence noting his Vietnamese nationality. We would submit that the evidence of the expert – the oral evidence of the expert was directly inconsistent with the legislation that has been proffered as the current legislation in respect of Vietnamese citizenship. And as noted earlier, when asked three times a question about how the Vietnamese authority would be able to – or whether they would be able to locate documents in their own archives, he avoided the question and, in my submission, failed to address that issue as to the inconsistencies between the law and his opinion.
In those circumstances, we would submit that the tribunal should accept the documents which state the law of Vietnam, and that’s particularly that 2014 amendments. There is also no evidence that the applicant has attempted to register for – to regain or to obtain his Vietnamese citizenship. And there is no evidence that’s been attained by the applicant to show that Vietnamese State agencies would have no grounds for identification of the applicant.
The 2014 amendments to Article 20 of the Law on Vietnamese Nationality outline the “sequence and procedures to register for recognition as Vietnamese nationality and issuance of Vietnamese passport” (Exhibit A7). Clause 4 of Article 20 of the Law on Vietnamese Nationals in part provides (Exhibit A7):
4.In case the representative agencies find no adequate grounds for determining Vietnamese nationality, the following things should be done:
(a)In case requestor was born in Vietnam and had permanent residence in Vietnam:
The representative agencies shall study and check the information declared in the Registration statement against identity papers and attached relevant papers, and upon finding any information as grounds for determining Vietnamese nationality of such persons (such as papers bearing Vietnamese full names: place of birth, place for registering births, deaths and marriages in Vietnam; institutions of education and training, agencies, organisations in Vietnam where such persons studied and worked, residence address in Vietnam before leaving the country; full name and address of relatives in Vietnam), the representative agencies shall send a document enclosed with such papers to the Ministry of Foreign Affairs for proposal to the Ministry of Public Security, Ministry of Justice for verification according to the provision set out in Clause 5 of this Article.
After receiving verification results and upon finding grounds for determination of Vietnamese nationality, the representative agencies shall record in the register that such persons have Vietnamese nationality; issuance of passports or a copy of recognition of such persons as Vietnamese nationality shall be executed according to the provisions set out in Clause 3 of this Article
In case home-based agencies have no grounds for determination of Vietnamese nationality, the representative agencies shall reply in writing to such requestor that he/she has no grounds for determination of Vietnamese nationality.

The Tribunal notes this new Article 20 replaced Article 20 in the old law (amendments introduced in 2009) which stated in part:
In case the registrant for retention of Vietnamese nationality does not possess adequate papers to prove his/her Vietnamese nationality or possesses unclear papers, the registering agency shall coordinate with concerned agencies and organizations in conducting verification under the guidance of the Ministry of Justice, the Ministry of Foreign Affairs and the Ministry of Public Security to determine whether the applicant holds Vietnamese nationality. Verification results must also be recorded in the nationality retention register.[10]
[10] Ministry of Justice (Vietnam), Decree: Detailing and guiding a number of articles of the law on Vietnamese nationality (Vietnam), 22 September 2009, art.20, >
The introduction of the 2014 amendments appears consistent with an attempt to introduce a more detailed process for both application and verification of requests for recognition of Vietnamese nationality, including where documentation received is inadequate for determining nationality.
Clause 5 of the new Article 20 provides that after receiving our request for verification, the Ministry of Foreign Affairs shall send a written proposal to the Ministry of Public Security or the Ministry of Justice for verification investigation. Clause 6 of the Law on Vietnamese Nationality provides that:
Within a period of 45 days since receipt of such written proposal, the Ministry of Public Security, Ministry of Justice shall carry out verification, investigation and response to the Ministry of Foreign Affairs.
After receiving written response from the Ministry of Public Security, Ministry of Justice regarding results from verification investigation, the Ministry of Foreign Affairs shall send a written notice of such results to the representative agencies for concluding if such person has Vietnamese nationality.
The Respondent submitted that given the length of time the Applicant lived in Vietnam, it was likely that the verification process outlined in the Law on Vietnamese Nationality (as amended in 2014) would be able to identify documents verifying the Applicant’s Vietnamese nationality. The Respondent submitted (Transcript, p 77-78):
In that respect, we note that the applicant lived in Vietnam for a significant amount of time, a period of 26 years. He attended high school in Vietnam. He noted that he paid registration fees to the government. Presumably the government has records of that. He noted that he was listed on the license for the boat that he operated. He noted also that he was listed on his children’s Vietnamese birth certificates, although he didn’t have a copy of those. It would be assumed, in my submission, that the Vietnamese government would retain copies of those documents in their own records.
Also that he held other identity documents which were lost on transiting from Vietnam to Hong Kong. I would add that the applicant’s solicitors have submitted a document entitled ‘Vietnamese citizenship legislation’ and I think the Tribunal marked that as A10. That document, as I’m sure the Tribunal is aware is the pre-amended document. So Articles 13 and 26(3) of that, have since been amended, and there are amendments contained in other areas of documents that have been provided.
Specifically, as stated in the document that the applicant submitted on ‘Report on Citizenship Law Vietnam’ … The report notes that – specifically notes that Article 13(2) of the 2014 amendment was brought in for overseas Vietnamese who have not yet lost their citizenship but have no papers to prove their citizenship. It allows them to register with overseas Vietnamese representative missions, to verify their citizenship and to be issued with a Vietnamese passport.
At the same time, the old Article 26(3) specifying that failing to register constituted ground for loss of citizen-ship, was removed in that 2014 amendment. Now, it’s clear from those documents that the applicant’s solicitors have provided, that the very situation that the applicant finds himself in currently, are the reasons that the 2014 amendments came in. Notwithstanding … Mr Hoang’s opinion that those laws are not applied.
The document provides, for example, a link to one of the references is a link to an article from 2014, ‘President signs order to announce amended nationality laws.’ Again, the whole purpose of that article is to note that Vietnamese residing abroad, who have not lost Vietnamese nationality, and have no papers to prove that their Vietnamese nationality, as prescribed in Article 11, should make registration with overseas Vietnamese representative missions to have their Vietnamese nationality recognised, and Vietnamese passports issued. That was the entire reason for the 2014 amendments, in my submission.
The Tribunal further notes that the Applicant’s parents remained in Vietnam until their deaths in the 1990s. While it is unclear whether any documents relating to his parents Vietnamese nationality would be available to the Applicant, either through Vietnamese authorities or perhaps through his siblings, such documentation might also assist to satisfy the requirements of the Law on Vietnamese Nationality (Exhibit A10, Article 15).
The Tribunal agrees with the Respondent’s submissions that elements of Mr Hoang’s evidence were problematic. Mr Hoang was asked several times about the verification process outlined in the 2014 amendments to the Law on Vietnamese Nationality. In the Tribunal’s view, Mr Hoang repeatedly failed to answer this question, responding merely that without documents the Applicant would not be able to confirm his citizenship. He refused to respond to questions on the text of the Law on Vietnamese Nationality where those appeared inconsistent with this statement and appeared unfamiliar with some elements of the law including the processes identified under Article 20(4) of the Law on Vietnamese Nationality (Transcript, p 48).
When asked by the Tribunal whether Article 20 of the Law on Vietnamese Nationality indicated that Vietnamese authorities can look for documents in support of an application to register Vietnamese nationality, he replied:
Those documents, they don’t have the basis to be accepted as the supporting documents for the application. But this also depends on what the public security say about this, and in my position I cannot provide a proper answer. But, in reality, these documents were not accepted (Transcript, p 48).
Further, the Tribunal specifically asked about a reference in the 2014 amendments to documents containing Vietnamese nationality related information issued by “foreign competent agencies” (Exhibit A7, Article 19(2)(b)). Mr Hoang initially indicated he wasn’t sure what the reference meant.
Although Mr Hoang referred to having made applications for ex-patriots in Vietnam for recognition of Vietnamese citizenship or reacquisition of Vietnamese citizenship, it was not clear that he had any experience in applying to an overseas Vietnamese post and in particular, of doing so in Australia. Given that there are extensive provisions dealing with these kinds of applications in the Law on Vietnamese Nationality, this cast some doubt over the level of expertise Mr Hoang had in circumstances similar to the Applicant’s.
The Tribunal accepts that there may be a difference between the text of the law and its application as a question of practice. However, there were many elements of the Law on Vietnamese Nationality which, both on their face and having regard to published government pronouncements, appear to have been specifically included to deal with circumstances of Vietnamese refugees, such as the Applicant, who left the country a significant time ago and no longer have any documentation to prove their Vietnamese citizenship. Taking Mr Hoang’s evidence to its logical conclusion, the explicit reference in Article 18(1) of the Law on Vietnamese Nationality to “Overseas Vietnamese who have not yet lost Vietnamese nationality and have no papers to prove their Vietnamese nationality before July 1, 2009 according to the Vietnamese law” can have no practical effect. Having regard to the 2014 amendments and the 2008 Law on Vietnamese Nationality, the Tribunal is not satisfied on the strength of Mr Hoang’s evidence that such an outcome is correct.
The Tribunal finds that the Vietnamese law clearly contemplates a process for verifying the nationality of persons in the Applicant’s circumstances. The outcome of the process must depend on the individual case. It has not been tested in the Applicant’s case.
The Respondent conceded that given issues associated with the Applicant’s return remain to be resolved, and the identified processes may take some time, there remained a risk that there may be a period of detention and the Tribunal should take into account the likelihood that that may in fact occur, no matter how small the risk of extended detention may be.
However, the Respondent submitted that even if the Tribunal were to find that there was a likelihood of indefinite detention, or prolonged detention while the issues of citizenship were resolved, this did not outweigh the primary considerations of the protection of the Australian community, and the expectations of the Australian community in situations where the Applicant had committed serious crimes and there was a “high” risk that the Applicant would continue to offend.
The Respondent also submitted that in the event that the Applicant was detained for an extended period of time until the issue of his citizenship of Vietnam was resolved, or if it was resolved against the Applicant’s return, it would remain open to the Minister to grant a visa under section 195A of the Act to avoid the visa applicant being detained indefinitely (Transcript, p 13).
The Tribunal accepts that there is a degree of uncertainty as to the outcome of the process of registering for recognition of Vietnamese citizenship. There is also uncertainty as to how long the process would take, though the Tribunal notes that the Law itself contains timeframes for processing which do not appear excessive. The Tribunal does not accept however that there is evidence to support the Applicant’s claim that the outcome will necessarily be that he will be refused recognition of his Vietnamese citizenship and not issued with a passport or have a right of return and residence. In such circumstances, it is merely speculation to say that the Applicant will be indefinitely detained if the visa cancellation is not revoked and that affects the weight to be given to this consideration.
The Tribunal regards that the relevant consideration raised in the context of the question of the Applicant’s Vietnamese nationality is whether or not there is a risk that the Applicant would be indefinitely detained in immigration detention. Having regard to all the material before it, the Tribunal finds that while there is a risk that the Applicant will be detained for a period while his application for recognition of Vietnamese nationality is processed, there is a low risk that such detention would become permanent.
However, as the Applicant does not currently hold a passport/documents issued by the Vietnamese government which would prove his Vietnamese nationality, the Tribunal does accept that there is a risk that if the cancellation decision is not revoked the Applicant may be detained indefinitely, or more likely for an extended period whilst an application for confirmation of his Vietnamese nationality is processed by the Vietnamese Government. The Tribunal takes this possibility into consideration and gives that risk weight. The prospect of indefinite detention is something which should be contemplated lightly.
In this regard, the Tribunal notes that the Applicant has already spent an extended period in detention, apparently exacerbated by the Minister’s failure to properly notify the Applicant at the time the decision was made. In such circumstances, the Tribunal would expect that the Minister and the Australian Government would prioritise assisting the Applicant to resolve his citizenship status as soon as possible.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act.
In relation to the primary considerations that the Tribunal must take into account under Direction no. 65, the findings that the Tribunal has made regarding the Protection of the Australian Community (paragraphs 13.1, 13.1.1 and 13.1.2 of Direction no. 65) and the Expectations of the Australian Community (paragraph 13.3 of Direction no. 65) weigh strongly in favour of the Tribunal refusing to revoke the cancellation of his visa (that is, affirming the Reviewable Decision).
This is particularly so given the Applicant’s long and largely unbroken history of offending in Australia since shortly after arriving as an adult and the repeated warnings given to the Applicant that have been ignored. The Applicant has been given many chances to reform his conduct and remain in Australia and he has consistently failed to avail himself of these opportunities. The Tribunal is not satisfied that his family’s offer of support is sufficient to lessen the risk that the Applicant will continue to offend as such support has not been effective in curbing his offending in the past.
With respect to the primary consideration regarding the best interests of minor children (13.2 of Direction no. 65), although the Tribunal has found, based on the limited information before it, that the best interests of two of the Applicant’s grandchildren may, on balance, be better served by their grandfather (the Applicant) being permitted to stay in Australia, it is outweighed by the other two primary considerations in circumstances where the Applicant has had very limited contact with children and has a history of estrangement from his family in the context of family violence.
In relation to the other considerations (paragraph 14 of Direction no. 65), some are of limited or no relevance to the Applicant’s situation (paragraphs 14.1, 14.3 and 14.5 of Direction no. 65). While the Tribunal finds that others weigh, on balance, in the Applicant’s favour, the Tribunal is not satisfied that they outweigh the primary considerations identified above.
While the Tribunal accepts the extent of the impediments the Applicant may face on return to Vietnam, in particular the potential deterioration in his mental health due to lack of treatment, the Tribunal does not regard these impediments as insurmountable. The Applicant spent many years in Vietnam prior to coming to Australia and faces limited language or cultural barriers on return. Some of the impediments he may face, including the likelihood of the Applicant suffering ongoing mental health issues due to a lack of treatment, would be in part due to the ongoing failure of the Applicant to recognise his mental health issues. This impediment would also exist were he to be returned to the community in Australia. Having regard to all the circumstances, the Tribunal gives this consideration less weight than the primary considerations mentioned above.
The Tribunal accepts that the Applicant has family ties in Australia, however he has been estranged from his family for a significant amount of time due to family violence orders and terms of imprisonment and has not lived with his family for around seven years. While the Tribunal accepts that members of his family have reconciled with him and that the Applicant may suffer some hardship if he is returned to Vietnam, his extended separation from his family leads the Tribunal to give this less weight than the primary considerations.
Finally, the Tribunal accepts that there is a risk that if the Reviewable Decision is not revoked the Applicant may be detained indefinitely, or for an extended period whilst an application for confirmation of his Vietnamese nationality is processed by the Vietnamese Government. However, the Tribunal is satisfied that he is a Vietnamese Citizen and that there are avenues available to him to have his nationality recognised.
In these circumstances, it would not be appropriate for the Tribunal to revoke the mandatory cancellation of the Applicant’s visa. The correct and preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 9 February 2017 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 222 (two hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of Member S Burford

....[sgd]....................................................................
Associate
Dated: 5 November 2018

Date(s) of hearing: 18 October 2018

Counsel for the Applicant: Mr Benjamin Zipser

Representative for the Applicant: Mr Philip Pham

Solicitors for the Applicant: Pham Lawyers

Representative for the Respondent: Mr Ashley Burgess

Solicitors for the Respondent: Sparke Helmore

[2018] AATA 4126

5 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Date(s) of hearing:	18 October 2018
Counsel for the Applicant:	Mr Benjamin Zipser
Representative for the Applicant:	Mr Philip Pham
Solicitors for the Applicant:	Pham Lawyers
Representative for the Respondent:	Mr Ashley Burgess
Solicitors for the Respondent:	Sparke Helmore