LPDT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 2224
•7 July 2021
LPDT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2224 (7 July 2021)
Division:GENERAL DIVISION
File Number: 2021/2590
Re:LPDT
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member P. Q. Wood
Date:7 July 2021
Place:Melbourne
The Tribunal affirms the decision under review.
........[sgd]................................................................
Senior Member P. Q. Wood
Catchwords
MIGRATION – visa cancellation – non-revocation of mandatory visa cancellation – Class 801 – failure to pass character test – where applicant made representations seeking revocation of visa cancellation – where delegate not satisfied another reason to revoke visa cancellation where applicant seeks review by Tribunal - Direction 90 – substantial criminal offending – protection of the Australian community – expectations of the Australian community – links to the Australian community – any other relevant claim – non-refoulement obligations – affirmed the decision under review
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Ali v Minister for Home Affairs [2020] 380 ALR 393
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar (2019) 272 FCR 589
YKSB v Minister for Home Affairs [2020] FCAFC 224
Secondary Materials
Australian Government Department of Health, National Drug Strategy 2016–2026 (2015)
Final Report of the National Ice Taskforce (6 October 2015)
Migration Act 1958 – Direction under s 499 - Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (made 8 March 2021/commenced 15 April 2021)REASONS FOR DECISION
Senior Member P. Q. Wood
7 July 2021
Introduction
The Applicant seeks review of a decision not to revoke the mandatory cancellation of his Class BS Subclass 801 (Spouse) visa made by the Department of Home Affairs on 14 April 2021.[1]
[1] G Documents (G-Docs), 11.
The hearing before the Tribunal in this matter was held in Melbourne over three days on 16, 17 and 18 June 2021 by videoconference as permitted by section 33A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), and consistent with the Tribunal President’s Special Measures Practice Direction issued in relation to the current public health emergency.
The Applicant was represented by Ms Chan of counsel. The Minister was represented by Ms Anderson from Clayton Utz.
I have read and had regard to all the written evidence, which was compiled into an agreed Exhibit Register, a true and correct copy of which (anonymised) is attached hereto and marked Annexure A. The Tribunal has summarised the witness testimony of each of the witnesses who appeared before it below.
For the following reasons I affirm the decision under review.
CONFIDENTIALITY
On 9 June 2021, the Tribunal made an order under section 35 of the AAT Act, to prohibit the publication of the name of the Applicant in these proceedings. Having regard to the specific circumstances of the case, the Tribunal considers it appropriate to refer to the Applicant by the pseudonym LPDT. Certain details will be redacted, including the identity of the witnesses and other names, and information tending to identify LPDT and any witnesses in the proceeding.
Pursuant to the same order abovementioned, the hearing was closed to the public.
Background
The Applicant is a citizen of the Socialist Republic of Vietnam who first arrived in Australia in 1997.[2] The Applicant entered Australia under a different name using a Cambodian passport and has lived in Australia under a number of different identities (which is discussed further below). According to movement records corresponding to these identities, he has departed and returned to Australia on several occasions.[3]
[2] Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC), [2].
[3] Ibid, [7].
On 25 September 2008, the Applicant was granted a Class BS Subclass 801 (Spouse) visa under the name in which he applied to the Tribunal.[4]
[4] G Docs, 39–51.
The Applicant has a history of very serious criminal offending.
On 10 November 2011, His Honour Judge Montgomery of the County Court of Victoria imposed upon the Applicant a sentence of 7 years and 6 months imprisonment with a non-parole period of 5 years for the following offences: conspiracy to import/export marketable quantity of border controlled drugs or plants, attempt to possess marketable quantity of imported border controlled drugs or plants, false or misleading statement in connection with visa permitting non-citizen to remain in Australia and make false statement in course of obtaining an Australian passport.[5]
[5] Ibid.
On 28 June 2013, the Applicant was convicted at the Magistrates Court of Victoria sitting at Melbourne in relation to making a false statutory declaration and making false statements.[6] He was sentenced to 6 months imprisonment on each charge to be served concurrently and a total effective sentence of 6 months imprisonment was imposed.[7]
[6] Ibid, 31.
[7] Ibid.
On 17 August 2017, His Honour Judge McInerney of the County Court of Victoria imposed upon the Applicant a sentence of 4 years and 6 months imprisonment in relation to two counts of traffick drug of dependence and deal property suspected proceed of crime.[8]
[8] Ibid, 32–38.
On 9 May 2019, a delegate of the Minister cancelled the Applicant’s visa under section 501(3A) of the Migration Act 1958 (Cth) (Act) as he had a substantial criminal record on account of the 17 August 2017 sentence and he was serving a full time custodial sentence.[9]
[9] Ibid, 17 [4].
On 5 June 2019, the Applicant requested revocation of the mandatory visa cancellation.[10]
[10] Ibid, 17 [3].
On 13 April 2021, the delegate decided not to revoke the mandatory cancellation decision.[11] The Applicant was notified of that decision on 14 April 2021.[12]
[11] Ibid, 15.
[12] Ibid, 355.
On 23 April 2021, the Applicant lodged an application for review of the delegate’s decision with the Tribunal.[13]
[13] Ibid, 1.
At the time of this review the Applicant remains in a Victorian correctional facility.
Witness evidence
The Tribunal received evidence from:
(a)The Applicant;
(b)The Applicant’s Australian citizen son;
(c)The Applicant’s Australian citizen wife;
(d)The Applicant’s friend and previous/potential future employer;
(e)The Applicant’s other friend;
(f)An expert witness, lawyer and former police officer practising in Vietnam; and
(g)A Psychologist.
The Applicant
The Tribunal was provided with a statement from the Applicant, dated 12 May 2020.[14] In the statement, the Applicant contends that:
[14] Ibid, 85[1].
(a)He spent his childhood in Vietnam during the Vietnam war and his parents passed away when he was 14 years old;
(b)He fled Vietnam for Phnom Penh, Cambodia before coming to Australia in 1997;
(c)Upon his arrival in Australia, he struggled with language difficulties and a lack of support;
(d)Having arrived in Australia under a false name, he continued to adopt other false identities;
(e)He married his Australian citizen wife in June 2006;
(f)After amassing gambling debts, he became involved in drug trafficking for which he was sentenced in November 2011;
(g)Upon his release in September 2014, he was required to handle his wife’s debts and care for his son on his own, following her imprisonment in relation to another drug matter;
(h)With life being very hard, with a lot of expenses to pay, he returned to drug trafficking;
(i)In prison he has completed a number of rehabilitative programs and achieved a number of certificates of completion; and
(j)He wants to be present to guide his son, has improved his English language skills, is remorseful and would like to open a small eatery.
The Tribunal was also provided with a signed statement from the Applicant dated 28 May 2021 (marked as Exhibit A1). In the signed statement the Applicant further contends that:
(a)He attended secondary school in Vietnam and graduated at the age of 18 years before undertaking further studies focusing on accounting;
(b)In Vietnam he worked both for the government and in a procurement role for a private import/export company;
(c)Prior to coming to Australia, his previous employer was executed due to his involvement in drug-related crime;
(d)When he was in Cambodia, he invented the identity in which he has applied to the Tribunal under;
(e)Between 2006 and 2009 he travelled overseas, including to Vietnam, but that he did not fear the death penalty on those trips because he was travelling under a different identity;
(f)He is very regretful and is planning for the future;
(g)He is saving his prison wages, has separate savings, and intends to initially work for his friend in the kitchen trade;
(h)That while he would like to qualify as a chef and open a restaurant, he is willing to take work wherever there is a skills shortage;
(i)That he intends to become a valuable member of the community and does not wish to waste opportunities or disappoint others;
(j)He is remorseful, has improved his English language skills, has undertaken a parenting program and is keen to be a role model for his son; and
(k)He is aware of Buddhist teachings and the impact of drugs on others.
In his oral testimony the Applicant reasserted the contents of his written evidence.
In summary, the Applicant testified that he is personally motivated not to reoffend, in part because he is the subject of an arrest warrant in Vietnam concerning drug-related activity which he was associated with prior to leaving Vietnam. The Applicant acknowledged that he has been a recidivist offender, but now claims to have financial, emotional and community support which address the previous triggers of his offending. Similarly, the Applicant gave evidence of having undertaken rehabilitative programs in prison and learning how drugs impact the community. He told the Tribunal that he feels remorseful and foolish.
The Applicant’s Australian Citizen Son
The Tribunal was provided with an undated statement from the Applicant’s son (marked as Exhibit A4). In the statement the Applicant’s son contends that:
(a)The Applicant is a hard worker and caring person who has always been the person to whom he has looked up to and thought of for reliability;
(b)Where possible, he has visited the Applicant in prison over the years;
(c)His mother has been imprisoned since 2015;
(d)He intends to become an athlete and play competitive soccer and looks forward to the Applicant being released and supporting him in that endeavour;
(e)Upon his release, the Applicant would reside with his step-daughter and her family who could assist him to obtain a job and a home of his own;
(f)The Applicant’s circumstances have impacted his emotional state and schooling, and are causing him anxiety and sleepless nights; and
(g)There are many people who can vouch for the Applicant to confirm that he is a kind-hearted person.
In his oral evidence, the Applicant’s son reasserted the contents of his written evidence. He told the Tribunal that he lives with his step-sister. He said that he had not been able to visit the Applicant recently because of the Covid-19 pandemic, but that he endeavoured to maintain telephone contact with his father once or twice per week where possible. The witness described experiencing adjustment issues, depression, anxiety, a lack of focus and sleepless nights. The witness said that he does not require money from his father at present and hoped to be able to live with him in Australia in the future. He said that his conditions would be made worse if his father was forced to return to Vietnam but that he would maintain contact with him if that occurred.
The Applicant’s Australian Citizen Wife
The Tribunal was provided with a signed statement from the Applicant’s wife, dated 18 May 2021 (marked as Exhibit A3). In the statement the Applicant’s wife contends that:
(a)She is presently serving a 10-year sentence in a Victorian prison;
(b)Previously she had lived with her husband in Australia for over 20 years, and they have a son born in 2003;
(c)She values family highly, is scared and worried that her family will break apart if the Applicant is returned to Vietnam;
(d)The Applicant is a good and gentle person who works hard and regrets his offending;
(e)She and the Applicant plan to resume their family life upon being released from prison, obtain employment and reintegrate back into the community; and
(f)If the Applicant is returned to Vietnam it would be incredibly hard for both her and her son.
In her oral testimony the Applicant’s wife reasserted the contents of her written evidence. She said that the Applicant telephones her twice a week, that she sends messages to the Applicant via their son and that she and the Applicant also write to each other by hand.
The Applicant’s wife told the Tribunal that a year after she was imprisoned her parents passed away. She said that she has severe mental health issues, that she does not sleep well at night, that she has very bad asthma and that she takes medication for high blood pressure. She told the Tribunal that her health gets worse with stress.
The Applicant’s wife told the Tribunal that the Applicant regrets his offending and said that the Applicant had promised her that he would never reoffend again. She said that she was hopeful that the Applicant would be given an opportunity to make amends to their son who wants to be able to share meals with his parents.
Additionally, she said that if the Applicant was returned to Vietnam, she would be distraught, as her son would not be able to see his father. She asserted that her son is terribly distressed by the circumstances in which the family finds itself.
The Applicant’s wife told the Tribunal that she had only recently become aware of the Applicant’s assertion that he may face the death penalty in Vietnam.
The Applicant’s Friend and Previous/potential Future Employer
The Tribunal was provided with a statement from the Applicant’s friend and previous/potential employer, dated 31 May 2021 (marked as Exhibit A2). In the statement he contends that:
(a)He is the director of a business in the kitchen/joinery trade and employed the Applicant as a machine operator for approximately six months in 2016 after the Applicant was introduced to him as a hard-working and trustworthy individual;
(b)While the Applicant only worked for him briefly, he was a considerable asset to the business and proved to be efficient and hard-working;
(c)He understands the Applicant to have offended for financial reasons and now to be remorseful; and
(d)He is willing to employ the Applicant full-time in his business upon his release from prison.
In his oral evidence, this witness said he understood the Applicant to have committed serious offences but to be a good worker. He told the Tribunal that the Applicant had also previously done deliveries for him. In cross examination, this witness admitted that he had no knowledge of the Applicant’s offending. Nevertheless, he described the Applicant as a quick learner who listens and who can work machinery. He said that so long as his business could sustain him employing the Applicant, he would employ him.
The Applicant’s other Friend
The Applicant’s friend provided the Tribunal with a signed statement, dated 27 May 2021 (marked as Exhibit A5). The Tribunal has read and had regard to this written statement.
In his written statement, the Applicant’s friend contends:
(a)That he has known the Applicant since 2008–2009;
(b)That he spent time with the Applicant in prison around 2012–2013;
(c)That he now works as a handyman doing renovations and construction work residential houses;
(d)That he speaks to the Applicant by telephone every few weeks;
(e)That the Applicant is going through a transformation process;
(f)That he understands the Applicant to be regretful, shameful and wanting to be a role model for his son;
(g)That the Applicant is fearful of being executed in Vietnam;
(h)That he would support the Applicant upon his release and the Applicant could reside with him and his family; and
(i)That the Applicant is capable of finding employment himself, but that he could assist the Applicant to obtain employment.
In his oral evidence, this witness said that he came to know the Applicant through the Applicant’s wife who was then operating a hairdressing salon. He told the Tribunal that he developed the friendship with the Applicant further when they were in prison together in 2012–13. He described the Applicant as a good person and said that he could assist the Applicant to obtain work in the future. He said that the Applicant could live with him and work with him. He also said that he would provide financial support to the Applicant if necessary.
He said that he understood if the Applicant was forced to return to Vietnam, there would be no one to look after the Applicant’s son.
Expert Witness: Lawyer and Former Police Officer Practising in Vietnam
The Tribunal was provided with signed statements dated 28 May 2021 (marked as Exhibit A8) and 11 June 2021 (marked as Exhibit A9) from an expert witness who is a lawyer and former police officer practising in civil and criminal law in Vietnam. Additionally, the Tribunal has read and had regard to the relevant instructions provided to this expert witness.
In summary, in the written statements the expert witness contends:
(a)If he became aware of the identity of a person subject to an arrest warrant, he must report that to competent authorities;
(b)That the Ministry of Public Security portal allows people to view the list of arrest warrants which remain current;
(c)There is a specific legal procedure for issuing an arrest warrant in Vietnam;
(d)That despite the passage of time, a person can still be apprehended if found by competent authorities;
(e)A person the subject of a warrant could discover they are named in such a warrant through the official website or the media. Additionally, a competent authority may also attend the residence of such a person;
(f)There is no expiry to an arrest warrant;
(g)Investigative authorities can use their professional skills to identify the subject of an arrest warrant based on their identification characteristics, activities and living circumstances even if a person has changed their name or not returned to Vietnam for a number of years;
(h)Precedent exists where an arrest warrant has been executed after almost 3 decades;
(i)Based upon the hypothetical scenarios provided in the relevant instructions, imprisonment and the death penalty could be imposed; and
(j)The death sentence continues to be commonly imposed in relation to drug-related crime.
In their oral evidence, the expert witness said that the law of Vietnam is based on a civil law system. They explained the steps which authorities may take in order to attempt to locate a suspect and take a suspect into custody. They said that a suspect may know that they are wanted by authorities even before an arrest warrant is issued. The witness said that before an arrest warrant is signed the authorities would normally obtain identifying features of the suspect.
The witness confirmed his written evidence that arrest warrants do not have expiry dates and testified that they can be executed many years, even decades, after being issued. They said that fingerprints can be used to identify suspects and that serious crimes including drug offences are more likely to attract the attention of authorities even many years after they are alleged to have occurred.
The witness told the Tribunal that a suspect who returned to Vietnam for brief periods may not be apprehended if they travelled in a name other than the name specified in an arrest warrant.
The witness gave oral testimony in relation to a hypothetical situation provided by the Applicant’s legal representatives.
Psychologist
The Tribunal has also read and had regard to a report provided by a psychologist, dated 13 June 2019, who assessed both the Applicant and the Applicant’s wife. The Tribunal has also read and had regard to a report provided by the same psychologist dated 14 June 2021, who assessed both the Applicant’s son.
The psychologist did not appear before the Tribunal at the hearing.
Issues
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this sub-section provides that:
“(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.”
As I have referred above, the Applicant has previously made the necessary representations required by section 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. It is appropriate to refer to the Full Court of the Federal Court of Australia’s remarks in Minister for Home Affairs v Buadromo:[15]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[16]
[15] [2018] FCAFC 151.
[16] Ibid [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 [38] (North ACJ); Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues now before the Tribunal:
(1)Whether the Applicant passes the character test; and
(2)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Where an Applicant makes out on either ground, there is a line of authority to the effect that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[17] The Tribunal considers each of these issues below.
[17] Ibid.
If a person in the migration zone applies to the Tribunal for a review of a decision under section 501CA(4) of the Act not to revoke the mandatory cancellation of his or her visa, section 500(6L) of the Act provides that if the Tribunal has not made a decision 84 days after the date on which the person was notified of the decision, the decision is taken to have been affirmed by the Tribunal. Accordingly, it is necessary, to avoid this self-executing clause to have effect, for the Tribunal to make a decision in this case, by 7 July 2021.
(1) Does the Applicant pass the character test?
The character test is defined in section 501(6) of the Act. Under section 501(6)(a), a person will not pass the character test if they have a substantial criminal record. This phrase is defined in section 501(7)(c) of the Act, which provides that a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
As I have referred to above, on 17 August 2017, the Applicant was sentenced to an aggregate of 4 years and 6 months imprisonment in relation to 3 charges.[18] There is a concession from the Applicant that he does not pass the character test and that the only issue before the Tribunal is whether there is another reason why the cancellation should be revoked.[19] Both of these concessions are reflected by respective contentions to this effect in the Respondent’s Statement of Facts, Issue and Contentions (Respondent’s SFIC).[20]
[18] G Docs, 338.
[19] Applicant’s SFIC [21].
[20] Respondent’s Statement of Facts, Issues and Contentions [22].
There can be no question that the Applicant does not pass the character test pursuant to section 501(6)(a) of the Act. It follows that he cannot rely on section 501CA(4)(b)(i) of the Act for the revocation of the cancellation.
(2) Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act.
DIRECTION 90
On 8 March 2021, the Minister signed Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). The Direction commenced on 15 April 2021, and revoked the previous Direction 79 on the same date.[21] The non-revocation decision in this matter was therefore made under a previous Direction, while the hearing and release of the Tribunal’s decision follow after the commencement of a new Direction. The Full Court of the Federal Court of Australia has previously considered this issue during the transition from Direction 55 to Direction 65 in December 2014.[22]
[21] The Direction, [paragraph 2–3].
[22] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461.
In this case, the Direction applies. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[23]
[23] The Direction [6]. See also the Direction [4(1)] which provides that decision-maker includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The Principles in Paragraph 5.2
Paragraph 5.2 of the Direction is designed to provide a framework within which decision-makers should approach their task under section 501 or 501CA of the Act, as the case may be.
Summarised where appropriate, the principles are:
(a)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(b)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(c)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(d)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(e)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four Primary Considerations, and four Other Considerations which I must be guided by in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;[24]
(3) the best interests of minor children in Australia; and
(4) expectations of the Australian community.”[25]
[24] Considerations two and three are not relevant to this application.
[25] The Direction [8].
The Other Considerations which, where relevant, I must take into account include but are not limited to:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.”[26]
[26] Ibid [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:
(a)Information from independent and authoritative sources should be given appropriate weight;
(b)Primary Considerations should generally be given greater weight than Other Considerations; and
(c)One or more Primary Considerations may outweigh other Primary Considerations.
The guidance in paragraph 7 of the Direction I have quoted above does not differ materially from the guidance which appeared in former directions. Justice Colvin said of the former Direction 65 that:
“…Direction 65 [a predecessor to Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
The Tribunal now turns to addressing the abovementioned Primary and Other considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to 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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.”
In determining the weight allocable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
“(a) The nature and seriousness of the non-citizen’s conduct to date; and
(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”
Application of Factors in Paragraph 8.1.1(1) of the Direction
The Nature and Seriousness of the Non-Citizen’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
“(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, 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, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or 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).”
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes;[27] crimes of a violent nature against women or children (regardless of the sentence imposed);[28] or acts of family violence[29] (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
[27] Ibid, [8.1.1(1)(a)(i)].
[28] Ibid, [8.1.1(1)(a)(ii)].
[29] Ibid, [8.1.1(1)(a)(iii)].
The Applicant claims that he became involved in the drug trade to pay back debts which he had accumulated borrowing large sums of money to fund a gambling problem. Additionally, the Applicant claims that he trafficked drugs to pay for his family expenses, including his son’s private school fees.
The Applicant states that he is remorseful for his actions and that he has learnt that trafficking drugs is the worst mistake I have ever made in my life.
Taking into account all of the evidence, the Tribunal finds that sub-paragraph (a) of paragraph 8.1.1(1) of the Direction militates strongly in favour of a finding that the Applicant’s criminal offending has been of a very serious nature.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
“(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, 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, or an offence against section 197A of the Act, which prohibits escape from immigration detention.”
The Applicant’s conduct in trafficking drugs can be said to negatively impact vulnerable members of the community, namely drug users and persons experiencing drug addiction.
Taking into account all of the evidence, the Tribunal finds that sub-paragraph (b) of paragraph 8.1.1(1) of the Direction militates in favour of a finding that the Applicant’s criminal offending has been of a very serious nature.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker to consider the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The relevant sentences have been outlined above. The Tribunal finds that sub-paragraph (c) of paragraph 8.1.1(1) militates in favour of a finding that the totality of the Applicant’s offending must be viewed as very serious.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction directs a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Tribunal acknowledges that the offending in 2017 could be said to be less serious than the offending for which he was sentenced in 2011 if one simply has regard to the overall sentences imposed. The Tribunal is however concerned by the frequency of the offending. Indeed, in sentencing the applicant in relation to the 2017 offences, His Honour Judge McInerney of the County Court of Victoria observed that the offending took place only four months after the completion of the Applicant’s previous parole.[30]
[30] G Docs, 33 [5].
As such, in all the circumstances, the Tribunal is of the view that the Applicant’s criminal offending is frequent, which enlivens the application of sub-paragraph (d) of paragraph 8.1.1(1) of the Direction, in favour of not revoking the mandatory cancellation of the Applicant’s visa.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to give consideration to the cumulative effect of repeated offending of the non-citizen.
The cumulative effect of repeated offending by the Applicant in this case is very serious. The Tribunal observes that the 2011 offending involved 474.3 grams or 237 times the relevant measurable quantity.[31] In re-offending, the Applicant continued to traffic on scale. Indeed, in sentencing the Applicant in relation to the 2017 offences, His Honour Judge McInerney described the further offending in the following terms:
“Insofar as Charge 1 relating to methamphetamine, a trafficable quantity defined under the Act is three grams. The total amount found both on his person and at the home was eight times that amount, being 26.1 grams. Also pursuant to the schedule, in regard to Charge 2, that is Part 3 Schedule 2 of the drugs, poisons and controlled substances act, the trafficable quantity for heroin is also 3 grams. In this instance, in totality, [Applicant] was found with 196.39 grams of heroin, being approximately 65 times such quantity.”[32]
[31] Ibid, 40 [5].
[32] Ibid, 34 [6].
The Tribunal is of the view that the cumulative effect of the Applicant’s repeated offending, clearly enlivens the application of sub-paragraph (e) of paragraph 8.1.1(1) of the Direction in favour of a finding that the Applicant’s offending is of a very serious nature.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
It is appropriate here to refer to the multiple identities which the Applicant has adopted. This is discussed further, in respect of non-refoulement, below. The Tribunal has already, above, made reference to sentences imposed on the Applicant concerning the multiple identities which he has adopted at different times.
The Tribunal is of the view that the Applicant’s conduct in repeatedly adopting different identities clearly enlivens the application of sub-paragraph (f) of paragraph 8.1.1(1) of the Direction in favour of a finding that the Applicant’s offending is of a very serious nature.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to consider:
“whether the non-citizen has re-offended since having been 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 (observing that the absence of such a warning is not considered to be in the non-citizen’s favour).”
This consideration is directly relevant in this case. The sentencing remarks of His Honour Judge Montgomery of the County Court of Victoria indicate that, at the time of the 2011 sentence, investigations were made as to whether the Applicant would be deported. Notwithstanding this, the Applicant told the Tribunal that at that time he had no understanding that he could be deported. The Tribunal does not accept this.
At the hearing the Applicant was also asked about notes taken by prison officers in 2012–13 concerning “deportation issues”. The Applicant said that at that time he did not understand anything about deportation. The Tribunal does not accept this.
Similar denials to this effect were advanced by the Applicant’s representatives in the written material lodged with the Tribunal, on his behalf.
The Tribunal observes that in 2012 three Court of Appeal justices who considered an appeal application concerning the 2011 sentence observed that the Applicant would experience “stress” “while waiting to learn whether he will be deported at the completion of his sentence”.
Having considered all the evidence, the Tribunal considers that the Applicant, having arrived in Australia under a false identity and having been convicted of serious offences, would have understood that his migration status was a relevant issue prior to his re-offending.
The Tribunal is satisfied that the Applicant re-offended since having been formally warned or since otherwise being made aware in writing about the consequences of further offending in terms of his migration status.
Having regard to all of the evidence and submissions made to the Tribunal, including that which is outlined in the abovementioned relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, the Tribunal is of the overall view that the nature and seriousness of the Applicant’s conduct can only be characterised as very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view 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 8.1.2(2) of the Direction provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(a)
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(v)information and evidence on the risk of the non- citizen re-offending; and
(vi)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)Where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.”
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Paragraph 8.1.1(2)(a) of the Direction compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Specifically, this sub-paragraph requires an assessment of the nature of the harm likely to be suffered by or occasioned upon individuals or the Australian community were the Applicant to re-offend.
The nature of the harm that would result from the Applicant engaging in further criminal or other serious conduct in the realm of drug trafficking can be ascertained from relevant government reports.
The “Final Report of the National Ice Taskforce”, outlines the impact of methylamphetamine in the community:
“Unlike cannabis and heroin, ice [methamphetamine] is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long term use may damage the brain and cause impaired attention, memory and motor skills. The distress ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs.”[33]
[33] Final Report of the National Ice Taskforce (6 October 2015).
The “National Drug Strategy (2016–2026)” itemises the impact of the unlawful trade in illicit drugs across various sectors of the community’s resources ranging from health, to social and economic harms:
“Impacts can include:
·Health Harms such as:
·injury;
·chronic conditions and preventable diseases (including lung and other cancers; cardiovascular disease; liver cirrhosis);
·mental health problems; and
·road trauma.
·Social Harms including:
·violence and other crime;
·engagement with the criminal justice system more broadly;
·unhealthy childhood development and trauma;
·intergenerational trauma;
·contribution to domestic and family violence;
·child protection issues; and
·child/family wellbeing.
·Economic Harms associated with:
·healthcare and law enforcement costs;
·decreased productivity;
·associated criminal activity; and
·reinforcement of marginalisation and disadvantage.”[34]
[Emphasis in original.]
[34] Australian Government Department of Health, National Drug Strategy 2016–2026 (2015).
Thus, there is little to be said against the contention that the nature of the harm to individuals, in the event of the Applicant re-committing similar or identical unlawful conduct for which he was sentenced in 2011 and 2017, would, without question, involve (at the very least) very serious physical, psychological and economic harm with a more than realistic possibility of such harm resulting in disastrous consequences.
The terms of the Direction have clear application to the facts of this applicant. Put simply, having regard to the Applicant’s record of criminal offending in the realm of illicit drugs, were that offending to be repeated, its resulting consequences and harm may very well be so serious that any risk of similar conduct in the future is unacceptable. The Tribunal is of the view that reasonably minded members of the Australian community would regard this Applicant’s history of drug trafficking as so serious that they would refuse to accept any risk of its recurrence.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC) submits that he does not pose a risk of harm to the Australian community given the deterrent effect of the possibility of being subject to the death penalty if returned to Vietnam on the occasion of a further breach of the law. The Applicant further contends that many of the pressures that resulted in the Applicant’s previous offending no longer exist: there is evidence of social and financial support available to him upon his release, he recognises the harms caused to the community by the impact of drugs, he is personally motivated to become a productive member of Australian society, and he has concrete plans for maintaining employment and financial stability to avoid future re-offending.[35] These assertions were repeated in oral evidence at the hearing.
[35] Applicant’s SFIC.
The Minister’s position is that the Applicant should be found to pose a real risk of reoffending. In this respect the Respondent’s SFIC highlights the following:
“(a) the Applicant's concern 'even prior to committing offences in Australia … that he would be discovered, deported and sentenced to death'16 and a previous term of imprisonment of seven years and six months for offending conduct of a similar nature to the offending conduct the subject of the conviction that triggered the cancellation of the Applicant's visa did not deter the Applicant from continuing to engage in the offending conduct the subject of his 17/08/2017 convictions;
(b)Magistrate McNamara refused bail to the Applicant on 29 October 2010 on the grounds that there was an unacceptable risk that the Applicant would fail to appear in answer to bail and would commit an offence whilst on bail;
(c)Judge McInerney was 'somewhat guarded’ about the Applicant's prospects of rehabilitation;
(d)Neave and Harper JJA and Williams AJA observed that 'the [Applicant]’s prospects of rehabilitation … do not seem to us to be particularly bright';
(e)Judge Montgomery accepted the Applicant's pleas of guilty in 2011 demonstrated 'some remorse', but considered that in light of the Applicant's 'reluctance' to provide instructions as to where he had come from and who he was, the Applicant's remorse was 'probably not 100 per cent';
(f)when assessed for parole on 3 March 2021, the author opined that the Applicant's level of service/risk, need and responsivity was low, but noted that the Applicant had financial problems and that the Applicant's risk level:
(i) in respect of his criminal history was medium;
(ii) in respect of his companions was very high; and
(iii) in respect of his alcohol/drug problems was high.
(g)there is no evidence to demonstrate that the Applicant has engaged in Cognitive Behaviour Therapy or supportive and motivational psychotherapy - being the treatment recommended by Dr [redacted] - to address 'his problems', which Dr [redacted] opined included symptoms of depression, anxiety and low self esteem;
(h)it is not evident what benefit some of the courses the Applicant completed whilst in prison (for example, '6-Hour Managing Cravings Program') would have for the Applicant, in circumstances where Dr [redacted] opines that the Applicant's offending which led to his 17/08/2017 convictions occurred in the context of the Applicant struggling at that time 'at an emotional and financial level' and where the Applicant has denied that he uses illicit drugs, but has submitted that his drug related offending was 'the way that he obtained money' because life after he was previously released from prison was 'very hard' as he was 'homeless, unemployed' and required to 'handle … heavy debts';
(i)contrary to the Applicant's contention that many of the pressures that resulted in the Applicant’s previous offending and imprisonment will not exist, the evidence before the Tribunal does not demonstrate that the Applicant would not face the same emotional and financial 'struggles' with respect to which he reported that his 17/08/2017 convictions occurred, nor that he has resolved the budgeting and debt issues that he reported caused him to obtain money through his drug-related offending at that time;
(j)the Applicant has previously demonstrated a susceptibility to engaging in offending conduct for financial gain and if complex or challenging circumstances arise (for example, when he has been 'unable to meet all [his] expenses';
(k)notwithstanding that the Applicant, following his release on parole in 2014, worked at Kitchens for Trade (being the employer that the Applicant contends has offered him employment if the cancellation of his visa is revoked), he nonetheless continued to re-offend in 2017;
(l)notwithstanding that the Applicant has previously expressed remorse for his offending,28 he nonetheless continued to re-offend in 2017;
(m)the Applicant's repeated expression of 'appropriate remorse for his prior actions' was made 'attendant to [the Applicant's] strong desire to remain in Australia' and in circumstances where he provides a limited and sanitised version of his offending which seeks to highlight the hardships he encountered prior to his offending; and
(n)the Applicant's rehabilitation and ability to manage his finances without resorting to trafficking drugs 'as a form of employment' is untested in the community.”
The Tribunal has considered, as fulsomely as possible, the relevant evidence before it with regard to the Applicant’s risk of recidivism. The Tribunal is of the view the specific causative factors behind this Applicant’s past offending remain. Any asserted rehabilitative effect he may have experienced, including from programs, is so premature such that it comes nowhere near the level that would be required to reach a finding that his risk of repeating very seriously offending is anything other than what it was at the time of his most recent removal from the Australian community.
Conclusion: Primary Consideration 1
The Tribunal finds that:
(a)the nature of the Applicant’s offending to date is very serious;
(b)were he to reoffend in a similar way, the nature of the resulting harm would involve very significant physical, psychological and/or economic harm to the Australian community and, quite conceivably, to a disastrous level; and
(c)in terms of risk of recidivism, there is a demonstrably unresolved and consequently convincing likelihood that he will engage in further very serious offending conduct if returned to the Australian community.
In consideration of all the evidence, and each of the relevant factors contained in the Direction, the Tribunal finds that this Primary Consideration 1 weighs very strongly in favour of non‑revocation.
PRIMARY CONSIDERATIONS 2 & 3: FAMILY VIOLENCE & THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.2(1) of the Direction compels a decision-maker to make a determination about any family violence committed by the non-citizen. Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. There is no evidence before the Tribunal that these considerations are relevant in this case. The Applicant is not alleged to have committed family violence and the Applicant’s son is now 18 years of age.
PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[36] The Direction further explains:
“This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.”[37]
[36] The Direction, [8.4(3)].
[37] Ibid [8.4(4)] – paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.
In assessing the weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides two separate propositions which are worth examining separately. The first is that the Australian community expects non-citizens to obey Australian laws while in Australia. The second proposition is that where a non-citizen has engaged in serious conduct in breach of the community’s expectations, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that a
“visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa.”
In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
“(a) acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.”
The Tribunal also notes, based on the principles in paragraph 5.2 of the Direction, that:
(a)The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[38]
(b)Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life;[39] and
(c)The nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome adverse to the non-citizen.[40]
Analysis – Allocation of Weight to this Primary Consideration 4
[38] Ibid, [5.2(4)].
[39] Ibid.
[40] Ibid, [5.2(5)].
As a starting point, the Tribunal refers to its observations above, that the Applicant has been convicted of multiple serious offences on separate occasions over an extended period of time. This all amounts to conduct in breach of the Australian community’s expectation that non-citizens in Australia will obey the law. Therefore, by virtue of paragraph 8.4(1) of the Direction, the Australian community, as a “norm” expects the Government to remove the Applicant.
The next question is whether there are any factors which might vitiate or, perhaps more conservatively, counteract the Australian community’s expectation that the Applicant cease to hold a visa. Other than matters that are properly considered elsewhere in these reasons, there are none.
In any event, the Tribunal considers that this is a case that engages the principle in paragraph 5.2(5) of the Direction:
“the nature of the non-citizen’s conduct, and the harm resulting from it, is so serious that even the strong countervailing considerations are insufficient (at least so far as the Australian community’s expectations are concerned) to justify revoking the mandatory cancellation of the Applicant’s visa.”
Conclusion: Primary Consideration 4
In consideration of all the evidence and each of the relevant factors contained in the Direction, the Tribunal finds that this Primary Consideration weighs very strongly in favour of non‑revocation.
OTHER CONSIDERATIONS OF THE DIRECTION
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. The Tribunal will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International Non-Refoulement Obligations
Paragraph 9.1 of the Direction directs a decision maker to weigh any non-refoulement owed obligations owed in respect of the applicant against the Applicant’s criminal offending. It provides as follows:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2) In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has nonrefoulement obligations in respect of an unlawful non-citizen.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible at the section 501/section 501CA stage to consider nonrefoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non-citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8) If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non-refoulement obligations.”
At the outset, the Tribunal has read and had regard to the country information provided to it.[41] The Tribunal acknowledges that the death penalty is commonly imposed in relation to drug matters in Vietnam.
[41] DFAT Country Report & Human Rights Watch Reports as provided by the Applicant.
The Tribunal acknowledges that it must engage in active intellectual consideration as to the Applicant’s representation’s about risk of harm, regardless of the characterisation.[42] This cannot be postponed because the Applicant is able to apply for a protection visa.[43] The Tribunal’s consideration however, relates only to whether there is another reason for revocation pursuant to s 501CA of the Act, compared to the more extensive analysis routinely undertaken for protection visa applications.
[42] YKSB v Minister for Home Affairs [2020] FCAFC 224, 5; Minister for Home Affairs v Omar (2019) 272 FCR 589, [34]–[44].
[43] Ali v Minister for Home Affairs [2020] 380 ALR 393.
The Applicant put to both the delegate and the Tribunal that he faces the real risk of the death penalty if he is returned to Vietnam. The Applicant contends that whilst he initiated this review application in one name, he is actually the person named in an arrest warrant in relation to drug matters published on the Ministry of Public Security of Vietnam’s online web portal.
The Tribunal received extensive written submissions concerning the issue of non-refoulement. Indeed, the Applicant provided detailed written submissions dated 13 June 2021, in reply to the Respondent’s SFIC (and Addendum) which the Tribunal has read and had regard to. The Applicant provided further submissions dated 29 June 2021, in response to the Minister’s submissions dated 24 June 2021, which the Tribunal has also read and had regard to. The first issue arising however is whether the Tribunal can be satisfied that the Applicant is indeed the person named in the before mentioned arrest warrant.
As the Tribunal has made clear above, the Applicant has used many different names and dates of birth. The Tribunal acknowledges that the Applicant disclosed the name in the arrest warrant on 22 May 2019, 18 June 2019, 4 May 2020 and 28 May 2021.
The background to the Applicant’s non-refoulement claim is that he asserts that in or around 1996 to 1997 a former employer of his was arrested in Vietnam for trafficking drugs. He claims this person was ultimately sentenced death and executed in Vietnam. Following this, the Applicant claims that in 1997, he crossed the border to Cambodia and learnt that there was a warrant for his arrest in Vietnam.
The Applicant states that he created his first identity (Identity One) to avoid being identified as the subject of the arrest warrant.
The Applicant entered Australia on a Cambodian passport under another identity which claimed he was born in Cambodia in April 1968 (Identity Two).
While in Australia the Applicant applied for a spousal visa under a third identity, claiming to be born in April 1960 (Identity Three). This spousal visa application was refused by a delegate of the Minister following the sponsor’s withdrawal of her sponsorship.
The Applicant also applied for, and was issued, an Australian passport with a fourth identity, claiming to be born in June 1966 (Identity Four).
The Applicant then applied for an offshore spousal visa under a fifth identity claiming to be born in August 1966 (Identity Five). He was later granted the visa under this identity and lodged his application for review under the same identity.
Before sentencing the Applicant on 10 November 2011, His Honour Judge Montgomery of the County Court of Victoria enquired of the Applicant’s defence counsel, Mr Papas QC, as to the Applicant’s actual identity.[44] Mr Papas QC responded that he had no instructions to admit to the Court who the Applicant really is. At the same time, the prosecution also told the Court that they were unsure as to the Applicant’s actual identity.[45]
[44] G Docs, 43.
[45] Ibid.
As above, the Applicant has now stated that his actual identity is different to the one under which this review application has been lodged.
In all the circumstances, having regard to the many names and dates of birth that the Applicant has used at different times, the Tribunal considers the Applicant’s evidence as to his identity is inherently unreliable, and the Tribunal cannot be satisfied that the Applicant is the person named in the arrest warrant. As such, the Tribunal considers that the evidence before it does not rise to the level of supporting a conclusion that non-refoulement obligations are owed to the Applicant.
The Tribunal observes that the Applicant may apply for a protection visa. The Applicant seems to be aware of this. Indeed, under cross examination, when asked if he would be able to submit a protection visa application, the Applicant said that he would consult his lawyer about this in the future.
The Tribunal interposes here to make clear that it has considered the legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. Save for being successful in a protection visa application, the Tribunal acknowledges that the Applicant would be subject to removal in accordance with section 198 of the Act and subject to detention in any intervening period in accordance with section 189 of the Act. On the material presently available, the Tribunal does not consider that the Applicant is likely to be subject to any extended period of indefinite detention.
(b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account
“the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are any substantial language or cultural barriers; and
c)any social, medical and/or economic support available to that non-citizen in that country.”
The Tribunal will address each of the three components of this Other Consideration in turn.
First, it is necessary to consider the Applicant’s age and state of health.[46]
[46] The Direction, [9.2(1)(a)].
While the Applicant has adopted different dates of births over the years and the Tribunal cannot be confident of his exact age, it would appear that he is in his 50s and has a reasonable period of his life before him.
The Applicant has only recently engaged with a psychologist (to whom he declared that he was born in 1965). The material indicates that the Applicant has recently disclosed symptoms of depression, anxiety and low self-esteem to the psychologist.[47]
[47] G Docs, 100.
The evidence before the Tribunal is that the Applicant has been healthy enough to work in factory and kitchen type positions in Australia. Additionally, he worked with his wife when she operated a small nail salon prior to being incarcerated for drug-related offending.
Second, it is necessary to consider whether there are any substantial language or cultural barriers[48] to the Applicant returning to Vietnam.
[48] The Direction [9.2(1)(b)].
The Applicant was educated in Vietnam until the age of 18 years. He subsequently worked for the Vietnamese government and in other roles. The Tribunal is satisfied that the Applicant speaks fluent Vietnamese and is very familiar with the cultural aspects of the country.
Third, Paragraph 9.2 of the Direction requires an enquiry into the extent of any social, medical and/or economic support available in Vietnam.[49]
[49] Ibid [9.2(1)(c)].
The Applicant told the psychologist who assessed him that he has two brothers and five sisters ranging in ages between 52 and 70 years of age who were all domiciled in Vietnam.
The Applicant’s wife gave evidence that her family would not support the Applicant in Vietnam by reason of their advancing age. The Tribunal accepts this.
The psychologist who assessed the Applicant determined that he requires Cognitive Behaviour Therapy as well as supportive and motivational psychotherapy. The Applicant did not assert that he would be unable to obtain such treatment in Vietnam.
The Tribunal has had regard to the totality of the evidence. Having considered the available evidence and the parties’ submissions, the Tribunal considers that the Applicant would likely face some hardship at the prospect of not being able to see his wife and adult son in person if he is returned to Vietnam.
There can be no doubt that relocating would present the Applicant with all the usual challenges of such a move. However, the Applicant would return to a country that is most familiar with, where he has a work history, where many of his family members continue to reside and where he can contact his wife and son via traditional telecommunication/web-based means.
Overall, having considered all the circumstances, it is difficult to allocate anything more than a slight level of weight in favour of the Applicant, pursuant to this Other Consideration (b), such that his visa status to remain in Australia be restored to him.
(c) Impact on Victims
Paragraph 9.3(1) states that
“decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.”
The Tribunal has already broadly discussed above the scourge on members of the Australian community which the illicit drug trade presents.
The Tribunal does not however, have before it any specific victim impact statement (or equivalent). In the absence of any specific victim impact statement (or equivalent) about any impact on a specific victim(s), it would not be appropriate to allocate any weight to this Other Consideration (c) in circumstances where there is no actual information before the Tribunal about how non-revocation of the mandatory cancellation would impact any such victim(s). Accordingly, I am of therefore of the view that this Other Consideration (c) is of neutral weight for the purposes of determining this application
(d) Links to the Australian community
Paragraph 9.4 of the Direction requires that decision-makers must have regard to the following two factors. They comprise; 9.4.1. the strength, nature and duration of ties to Australia; and 9.4.2. the impact on Australian business interests.
9.4.1. Strength, Nature and Duration of Ties
With reference to the first part of this Other Consideration, it is necessary to consider three elements. First, it is necessary to have regard to the impact of any non-revocation decision on the Applicant’s immediate family where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to have regard to the strength, nature and duration of any family or social links the Applicant may have with people who have indefinite right to remain in Australia.
The Tribunal has already accepted above that the evidence establishes that the Applicant came to Australia in 1997.
The people who fall within the ambit of this specific category are the Applicant’s family members. In summary, the Applicant’s relationships with family members who have a right to remain in Australia indefinitely can be summarised as follows:
(a)The Applicant has an Australian citizen wife who, while imprisoned herself, maintains regular contact with the Applicant;
(b)He has an 18-year-old Australian citizen son who is a student at a school in metropolitan Melbourne; and
(c)He is a step-father to his two step-children: aged 31 and 33 years respectively.
The Tribunal has also had regard to the evidence concerning the Applicant’s friends in Australia. The Tribunal accepts that the Applicant has friends in Australia.
The Tribunal takes into account and has had regard to all of the evidence relating to the:
(a)The extent of the Applicant’s removal on his family members in Australia;
(b)The length of time he has resided in Australia; and
(c)The extent of the strength, duration and nature of his family or social links with people who have an indefinite right to remain in Australia.
Overall the Tribunal is of the view that these three elements to paragraph 9.4.1 of the Direction militate in favour of a finding that the strength, nature and duration of the Applicant’s ties to Australia weigh slightly, and certainly not determinatively, in favour of the restoration of his visa status to remain here.
9.4.2 Impact on Australian Business Interests
The Tribunal is mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on Australian business interests. This phrase is sought to be given some measure of definition in the text of paragraph 9.4.2(3) because weight can generally only be allocated in this instance where a non-revocation decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This second part of Other Consideration 4 is not relevant to determination of this application.
Weight allocable to Other Consideration 4: links to the Australian community
With specific reference to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to Australia), the Tribunal is of the view that having regard to the three specific components of this first part of Other Consideration 4, the totality of the evidence points to slight, and certainly not determinative weight, in favour of the Applicant.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations 1 and 4, each of which weigh strongly in favour of non‑revocation. The weight allocable to the Other Considerations relevant to the present matter can be summarised as follows:
(a)International non-refoulement obligations: neutral;
(b)Extent of impediments if removed: slight weight in favour of the Applicant;
(c)Impact on victims: neutral; and
(d)Links to the Australian community: slight weight in favour of the Applicant.
CONCLUSION
Is There Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As the Tribunal has noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before it, there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the considerations referred to in the Direction. The Tribunal finds as follows:
(a)Primary Consideration 1: weighs strongly in favour of non-revocation;
(b)Primary Consideration 2: is not relevant and is therefore neutral;
(c)Primary Consideration 3: is not relevant and is therefore neutral;
(d)Primary Consideration 4: weighs strongly in favour of non-revocation;
(e)The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal does not consider that the totality of the weight attributable to the relevant Other Considerations outweigh the strong, combined and determinative weight that it has attributed to Primary Considerations 1 and 4; and
(f)A complete view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 166 (one hundred and sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member P.Q. Wood
.......[sgd].................................................................
Associate
Dated: 7 July 2021
Date of hearing: 16, 17 and 18 June 2021 Counsel for the Applicant: Ms Kay Chan Solicitors for the Applicant JT Lawyers Advocate for the Respondent: Ms Hannah Anderson Solicitors for the Respondent: Clayton Utz EXHIBIT REGISTER
File No 2021/2590
Between LPDT (Applicant)AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Respondent)
Heard on Wednesday 16, Thursday 17 & Friday 18 June 2021
Before Senior Member P. Q. Wood
84th Day 7 July 2021
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF LODGEMENT
A1
Statement of [redacted] dated 28 May 2021
A
30 May 2021
A2
Statement of [redacted] dated 31 May 2021
A
31 May 2021
A3
Statement of [redacted] dated 18 May 2021
A
30 May 2021
A4
Statement of [redacted] (undated)
A
30 May 2021
A5
Statement of [redacted] dated 27 May 2021
A
30 May 2021
A6
Psychological Report of [redacted] dated 14 June 2021
A
14 June 2021
A7
Statement of [redacted] (undated)
A
30 May 2021
A8
Affidavit of [redacted] attaching Report of [redacted] dated 28 May 2021 and Letter of Instructions dated 21 May 2021 and 28 May 2021
A
30 May 2021
A9
Supplementary Report of [redacted] dated 11 June 2021 and Supplementary Letter of Instruction dated 10 June 2021
A
11 June 2021
A10
DFAT Country Report for Vietnam dated 13 December 2019
A
13 June 2021
A11
Applicant’s Statement of Facts, Issues and Contentions dated 28 May 2021
A
30 May 2021
A12
Applicant’s Supplementary Statement of Facts, Issues and Contentions dated 13 June 2021
A
13 June 2021
A13
Applicant’s Reply to the Respondent’s Supplementary Submissions dated 29 June 2021
A
29 June 2021
R1
Section 501G 'G' documents
R
12 May 2021
R2
Summonsed Material
R
7 June 2021
R3
Respondent's Statement of Facts, Issues and Contentions dated 9 June 2021
R
9 June 2021
R4
Addendum to the Respondent's Statement of Facts, Issues and Contentions
R
11 June 2021
R5
Respondent's Supplementary Submissions dated 24 June 2021
R
24 June 2021
2
10
0