LPDT and Minister for Immigration and Multicultural Affairs

Case [2024] ARTA 6

LPDT and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 6 (19 December 2024)

MatterType:  Migration

CitationNumber:                 New

Applicant:LPDT

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2021/2590

Tribunal:Senior Member A. Nikolic  

Place:Melbourne

Date:19 December 2024  

Decision:The Tribunal affirms the decision under review.

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

Senior Member A. Nikolic

Catchwords 
MIGRATION – mandatory visa cancellation – citizen of Vietnam – Class BS (Subclass 801) Spouse Visa – where Applicant first entered Australia on false passport and under false name – multiple false identities – conspiracy to import / export marketable quantity of border controlled drugs or plants – traffick drug of dependence – deal with property suspected of being proceeds of crime – other dishonesty offending – failure to pass good character test – substantial criminal record – non-revocation decision – Federal Court of Australia dismissed judicial review application – dismissal of appeal by Full Court of the Federal Court of Australia – High Court of Australia overturns decision of Full Court – application remitted – whether another reason to revoke the mandatory cancellation –  Ministerial Direction no. 110 applied – protection visa application refused and pending Federal Court appeal – decision affirmed

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth)

Cases
Al-Kateb v Godwin (2004) 219 CLR 562
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Brownlie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
CTK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
DOB18 v Minister for Home Affairs [2018] FCA 1523
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056
Hughes v The Queen (2017) 263 CLR 338
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
LPDT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2224
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 810
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Continue reading LPDT and Minister for Immigration and Multicultural Affairs

Sign in free to access the full text

Details
AGLC
LPDT and Minister for Immigration and Multicultural Affairs [2024] ARTA 6
Case
[2024] ARTA 6
Decision Date

CaseChat Overview and Summary

The case involves an Applicant, a citizen of Vietnam, who is subject to a mandatory visa cancellation under the Migration Act 1958 (Cth). The Applicant has a history of using false identities, engaging in drug-related offences, and other dishonesty offences. The decision under review was the refusal to revoke the mandatory visa cancellation, and the subsequent refusal of a Protection Visa application. The Applicant sought judicial review of these decisions, which were initially dismissed by the Federal Court of Australia and subsequently by the Full Court of the Federal Court. The High Court of Australia later overturned the Full Court's decision, remitting the matter back to the Tribunal for reconsideration.

The legal issues before the court were whether there were other reasons to revoke the mandatory visa cancellation, and whether the Tribunal had correctly applied the relevant legislative framework in refusing to revoke the cancellation and in refusing the Protection Visa application. The court had to consider the weight to be given to various primary and other considerations under the Migration Act, including the protection of the Australian community, the expectations of the Australian community, and the Applicant's personal circumstances.

The court found that the primary consideration of the protection of the Australian community, along with the expectation of the Australian community, considerably outweighed the other primary and secondary considerations. The court held that there were no other reasons to revoke the mandatory visa cancellation. The Tribunal affirmed the reviewable decision, finding that the mandatory visa cancellation should not be revoked. The court also found that the Tribunal had correctly applied the legislative framework in refusing to revoke the cancellation and in refusing the Protection Visa application.

The final orders of the court were to affirm the reviewable decision, dismissing the judicial review application, and to remit the matter to the Tribunal for reconsideration of the Protection Visa application in light of the court's findings.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons the Tribunal affirms the reviewable decision BACKGROUND The Applicant is 59 years old and a citizen of the Socialist Republic of Vietnam. He married while living there, fathered two children, but separated from his wife in 1996.[9] The Applicant refers to studies in planning and business management and employment with the Vietnamese Government.[10] In about 1996 or 1997 he claims to have ‘transferred to a private company in the import/export industry specialising in procurement’.[11][9] Exhibit A1, 1–2 [8]–[9].[10] Exhibit R1 379 [2].[11] Ibid. The year of the Applicant’s first arrival in Australia is unclear. A sentencing court was told by the Applicant’s solicitor in 2011 that he first arrived in Australia in August 1988 under a false identity.[12] The Applicant currently asserts he first arrived here in 1997 on a Cambodian passport obtained in a false identity.[13] He explains this occurred after the head of a company he worked for in Vietnam was arrested on drug trafficking charges,[14] causing the Applicant to immediately flee to Cambodia to avoid arrest.[15] The Applicant claims this decision was motivated by fear his employer would falsely implicate him in illicit drug activities despite the Applicant being unaware of the contents of ‘sealed boxes’ he delivered ‘to various places’.[16][12] Ibid 48 [24].[13] Applicant’s Statement of Facts, Issues, and Contentions (‘ASFIC’), 2 [5].[14] Exhibit A1, 2 [5].[15] Ibid.[16] Ibid 2 [11]–[15]. The Applicant accepts that since arriving in Australia he has used false identities.[17] In addition to the fraudulent Cambodian passport mentioned above, he obtained Australian and Vietnamese passports in two different names then used all three passports for international travel between 1997 and 2009.[18] This includes for holiday and/or business purposes to Cambodia, Vietnam, the United States of America (‘USA’), Canada, South Korea, and Hong Kong.[19] It is noteworthy the Applicant has returned to Vietnam on multiple occasions despite professing fear of arrest and a death sentence. One of these visits was in 2005 for a traditional Vietnamese wedding to his current wife.[20][17] Exhibit R1, 67, 81, 93, 102 (paragraph 2), 379–80, 388–9 [5], 392–5, 443(2), 578, 676-9; Exhibit R2, 100 [560].[18] Exhibit R1, 677 [5]; Exhibit R2, 14 [Q. 43–45], 54 [39]; Exhibit R3. [19] Exhibit A3.[20] Exhibit R1, 91 [6]; Exhibit A1, 3 [26]. The Applicant is first officially recorded as arriving in Australia in 2006 using a Vietnamese passport under the identity in which his visa was cancelled in the present matter. According to Departmental records he has departed Australia four times under this passport for periods of between one and 3 months.[21][21] Exhibit R1, 232–3. Between November 2011 and August 2017, the Applicant was convicted of multiple drug and dishonesty offences during three court appearances.[22] These each resulted in sentences of imprisonment as follows: (a)November 2011: The Applicant was convicted of conspiring to import a marketable quantity of heroin and two counts of attempting to possess a marketable quantity of heroin. He was also convicted of making false or misleading statements when he obtained an Australian passport, applied for an Australian visa, and in a statutory declaration (“false declaration offences”). He was sentenced to a total period of 7 years and 6 months imprisonment for the drug and false declaration offences, with a non-parole period of 5 years.(b)June 2013: The Applicant’s false declaration offences were successfully appealed and transferred to the Magistrates’ Court for reconsideration.[23] He was subsequently convicted of making a false statement, including in a statutory declaration and to an officer. He received a sentence of 6 months imprisonment on each charge to be served concurrently, resulting in a total effective sentence of 6 months.(c)August 2017: Within months of completing parole the Applicant engaged in further drug-related offending. In August 2017 he was convicted on two counts of trafficking a drug of dependence and dealing with property suspected of being proceeds of crime. The trafficking charges involved heroin and crystal methamphetamine. The Applicant was sentenced to 54 months’ imprisonment for the first trafficking offence, 48 months’ imprisonment for the second (of which 42 months was concurrent), and 6 months imprisonment for the proceeds of crime offence (of which 4 months was concurrent). The total effective sentence awarded was 5 years imprisonment with a non-parole period of 3 years and 2 months.[22] Ibid 35–6.[23] Ibid 590–1.Procedural history

Evidence

Evidence Before The Court

The individual and cumulative weighing process is a matter for individual decision-makers.[35]EVIDENCE[35] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [28], [37]–[38] (Colvin, Stewart and Jackson JJ); Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCR 582, 587 [23] (Mortimer J, as her Honour then was); Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, 551 [23], 522 [28] (Colvin J); Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, 473 [57].Statement of Facts, Issues, and Contentions A Statement of Facts, Issues, and Contentions (‘SFIC’) is routinely lodged by parties prior to a hearing and is comparable to a pleadings document. The Tribunal has considered an undated SFIC from the Applicant numbering 28 paragraphs and submissions dated 18 October 2024 replying to the Respondent’s SFIC dated 21 August 2024. Documentary evidence Over 3,000 pages of documents were tendered into evidence as follows:(a)Remittal bundle lodged by the Respondent numbering 1,601 pages;[36][36] Exhibit R1.(b)Supplementary documents lodged by the Respondent numbering 721 pages;[37][37] Exhibit R2.(c)Email from the Applicant’s lawyer at the Asylum Seeker Resource Centre (‘ASRC’) dated 18 April 2023, covering a one-page document referring to the Applicant’s travel and employment history, and 9 pages of submissions summarising claims relating to his Protection Visa application;[38] [38] Exhibit R3.(d)Statements of the Applicant dated 5 August 2024 numbering 16 pages, and 17 October 2024 numbering 2 pages;[39][39] Collectively Exhibit A1.(e)Two-page Statutory Declaration dated 5 August 2024 from a friend of the Applicant who claims to have known him for about 17 years;[40](f)Four-page Statutory Declaration dated 5 August 2024 from a friend the Applicant was imprisoned with in about 2018;[41](g)Three-page report dated 18 October 2024 from the Australian Vietnamese Women’s Association (‘AVWA’), covering a two-page undated Client Recovery Plan;[42](h)Two-page Statutory Declaration dated 5 August 2024 from a friend of the Applicant who is willing to offer him work in a kitchen renovation business;[43](i)Three-page Statutory Declaration dated 5 August 2024 from a friend the Applicant was imprisoned with about 10 years ago;[44](j)Undated 2-page statement of a company director offering to employ the Applicant, covering an ATO Business Activity Statement for the period July to September 2024;[45](k)Country Report for Vietnam dated 11 January 2022 from the Department of Foreign Affairs and Trade (‘DFAT’);[46](l)IHMS[47] summary reports dated 30 October 2023 and 29 April 2024, covering IHMS clinical records dated between 15 August and 10 September 2024, and an IHMS Special Needs Assessment dated 16 December 2022;[48] and(m)Report of the Royal Commission into the Casino Operator and Licence dated October 2021 by the Hon. Ray Finkelstein AO QC.[49] [40] Exhibit A2.[41] Exhibit A3.[42] Exhibit A4.[43] Exhibit A5.[44] Exhibit A6.[45] Exhibit A7[46] Exhibit A8.[47] International Health and Medical Services (“IHMS”) provides primary and mental health care services within the Australian immigration detention network.[48] Exhibit A9.[49] Exhibit A10.Applicant’s evidence

Decision

Reasons for decision

Having weighed the relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the primary consideration Protection of the Australian community, which is given greater weight than the other primary considerations, coupled with Expectations of the Australian community, considerably outweigh the combined weight given to the countervailing primary and other considerations.DECISION It follows that the Tribunal affirms the reviewable decision.

Ratio Decidendi

Legal Principle Established

Between November 2011 and August 2017, the Applicant was convicted of multiple drug and dishonesty offences during three court appearances.[22] These each resulted in sentences of imprisonment as follows: (a)November 2011: The Applicant was convicted of conspiring to import a marketable quantity of heroin and two counts of attempting to possess a marketable quantity of heroin. He was also convicted of making false or misleading statements when he obtained an Australian passport, applied for an Australian visa, and in a statutory declaration (“false declaration offences”). He was sentenced to a total period of 7 years and 6 months imprisonment for the drug and false declaration offences, with a non-parole period of 5 years.(b)June 2013: The Applicant’s false declaration offences were successfully appealed and transferred to the Magistrates’ Court for reconsideration.[23] He was subsequently convicted of making a false statement, including in a statutory declaration and to an officer. He received a sentence of 6 months imprisonment on each charge to be served concurrently, resulting in a total effective sentence of 6 months.(c)August 2017: Within months of completing parole the Applicant engaged in further drug-related offending. In August 2017 he was convicted on two counts of trafficking a drug of dependence and dealing with property suspected of being proceeds of crime. The trafficking charges involved heroin and crystal methamphetamine. The Applicant was sentenced to 54 months’ imprisonment for the first trafficking offence, 48 months’ imprisonment for the second (of which 42 months was concurrent), and 6 months imprisonment for the proceeds of crime offence (of which 4 months was concurrent). The total effective sentence awarded was 5 years imprisonment with a non-parole period of 3 years and 2 months.[22] Ibid 35–6.[23] Ibid 590–1.Procedural history In January 2023, the Applicant lodged an application for a Protection Visa.[24] This was refused on 23 October 2023.[25] He appealed the refusal decision to this Tribunal[26] but on 6 June 2024 his appeal was dismissed by the Migration and Refugee Division (‘MRD’).[27] Mr Maloney has advised the Tribunal that this decision is currently the subject of judicial appeal.[24] Exhibit R2, 1–45.[25] Ibid 112–31.[26] Ibid 132–7.[27] Ibid 236–57. Just prior to closing submissions on the afternoon of the final hearing day, Mr Maloney sought an adjournment so that arrangements could be made for the Applicant’s ex-wife and daughter in Vietnam to give evidence. His request arose from questions during cross-examination about why the Applicant’s family members in Vietnam did not give oral testimony. Mr Maloney submitted that the evidence of the Applicant’s ex-wife and daughter could address doubts about the veracity of documents he currently relies upon. The Tribunal denied the adjournment request, which would have required reopening the evidence after the parties’ respective cases had concluded. The Tribunal noted it was open to the Applicant since hearing dates and scheduling orders were decided over five months earlier to call any witnesses. The Tribunal also noted the Applicant’s evidence that he separated from his former wife almost 30 years ago when their children were quite young and to have had limited contact with them since. Given the very brief documentary evidence from the Applicant’s ex-wife and children in this proceeding,[28] it was unclear how supplementing it with oral testimony would add much. As for concerns about how identity documents currently relied on by the Applicant might be received, these were matters for submissions. Finally, given the significant listings currently before the Tribunal, it was unlikely a resumed hearing could be scheduled any earlier than February 2025. Extended delay is undesirable given the Applicant has remained in detention for some years as his various appeals have been addressed. [28] Ibid 84–5, 166.LEGISLATIVE FRAMEWORK