LQVM and Minister for Immigration and Border Protection (Migration)

LQVM and Minister for Immigration and Border Protection (Migration) [2017] AATA 7 (9 January 2017)
Division:GENERAL DIVISION
File Number: 2016/5618
Re:LQVM
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Regina Perton, Member
Date:9 January 2017
Place:Melbourne

The Tribunal sets aside the decision under review and substitutes the decision that the discretion in section 501(1) of the Migration Act 1958 to refuse the applicant's visa on character grounds should not be exercised.
.....................................[sgd]...................................
Regina Perton, Member
MIGRATION – refusal of protection visa – character test – substantial criminal record – discretion to refuse visa enlivened – drug cultivation and trafficking offences – protection of Australian community – risk to the Australian community should the conduct be repeated – whether risk of future harm acceptable – best interests of minor grand-daughter in Australia – international non-refoulement obligations – decision under review set aside
Legislation
Migration Act 1958 (Cth) ss 499(1), 499(2A), 501(2), 501(6), 501(7)
Open Courts Act 2013 (Vic)
Secondary Materials
Direction No. 65 – Visa Refusal and Cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Regina Perton, Member
9 January 2017

LQVM is a citizen of Vietnam. She first arrived in Australia on 25 February 2006 on a tourist visa. Since that first arrival, LQVM has left Australia and re-entered on several occasions. Her most recent arrival in Australia was on 26 July 2012 as the holder of a Student Guardian (Class TU) visa. She remained on that visa until it was cancelled on 8 July 2013 on character grounds following her conviction and imprisonment for drug related crimes. Her teenage child, to whom she was guardian, has returned to Vietnam. An elder son had also studied in Australia before returning to Vietnam. He has now returned to Australia with his Australian citizen spouse and their young daughter.
LVQM was released on parole on 1 April 2015 and was taken into immigration detention on the same day. She has remained in immigration detention since then.
On 1 July 2015 LQVM applied for a protection visa. On 11 September 2015 a delegate of the Minister for Immigration and Border Protection (the Minister) refused the protection visa on the basis that LQVM did not meet the primary criteria for the visa. LQVM appealed to the Migration and Refugee Division of this Tribunal (the MRD). On 11 January 2016 the MRD set aside the delegate’s decision and remitted the matter to the Minister with the direction that there were substantial grounds for believing that LQVM was a person in respect of whom Australia had protection obligations.
Prior to the MRD’s decision, on 23 December 2015, LQVM applied for a bridging visa to enable her to be released from immigration detention. On 17 March 2016, the bridging visa was refused on character grounds. LQVM sought review of that decision by this division of the Tribunal on 24 March 2016. On 10 June 2016, the Tribunal, differently constituted, affirmed the decision to refuse the bridging visa. LQVM therefore remains in detention.
On 16 June 2016 LQVM was sent a notice of intention to consider refusal of her protection visa under s 501(1) of the Migration Act 1958 (the Act) on the basis that the Minister’s delegate considered that she did not pass the character test because of her criminal record. LQVM’s representative provided submissions to the Department of Immigration and Border Protection (the Department) on 21 September 2016 seeking the delegate’s exercise of discretion not to refuse her a protection visa. On 13 October 2016 LQVM was advised that the Minister’s delegate had decided to refuse the grant of the protection visa.
On 18 October 2016 LQVM lodged an application for review with the Tribunal.
LEGISLATIVE BACKGROUND
Under s 501(1) of the Act, the Minister may refuse to grant a visa if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test (s 501(6)).
The character test is set out in s 501(6) of the Act, which provides that a person does not pass the character test if one of a number of grounds in s 501(6)(a) to (h) is met. Section 501(6)(a) of the Act provides that a person does not pass the character test if :
…a person has a substantial criminal record (as defined by subsection (7);
A substantial criminal record is defined in s 501(7)(c) as one where the person has been sentenced to a term of imprisonment of 12 months or more.
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. On 22 December 2014 the Minister issued Direction no. 65 - visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 65) which came into operation on 23 December 2014.
Direction 65 provides guidance for decision-makers when making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non-citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.
Paragraph 6.3 sets out the principles behind Direction 65:
6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian government can and should refuse entry to non-citizens or cancel their visas if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
Paragraph 7 of Direction 65 sets out how to exercise the discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b) must take into account the considerations of Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8 requires decision-makers to take into account the primary and other considerations relevant to the individual case:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant these to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations
LQVM’S CRIMINAL CONVICTIONS
LQVM has no known criminal history in her home country according to documentation provided to the Department. A National Police Certificate issued by the Australian Federal Police on 16 February 2016 provided the following information:

Court

Court Date

Offence

Court Result

Melbourne

County Court

1. 07 August 2014

Traffick drug of dependence (3 charges)

cult narc plant comm qty-cannabis

supply dod to child-to-supply anor person

cultivate narcotic plant – cannabis

Theft

Deal property suspected proceed of crime

Aggregate Imprisonment 51 months.

Aggregate Imprisonment 51 months. Pay compensation $14020.26

Imprisonment 1 month. Concurrent

Total 4 years, 3 months imprisonment

The sentencing judge directed that LQVM would be eligible to be considered for parole once she had served 2 years and 3 months of the total term. The judge declared that the period that LQVM had served on remand (slightly over 20 months) should be considered as constituting part of the sentence imposed.
This Tribunal often quotes from the sentencing remarks to illuminate the circumstances in which the offending occurred. However, in this instance, the judge has made a suppression order, directing that his sentencing remarks remain confidential until 6 August 2019. The order was made on Application by the Prosecution and is made under the Open Courts Act 2013 (Vic) for the purpose of protection the safety of any person, namely LQVM. LQVM’s counsel submitted that the suppression order meant that the Tribunal should not put any of the judge’s comments into its decision.
Whilst the suppression order has probably not been made in contemplation of proceedings such as these, the Tribunal has acceded to LQVM’s counsel’s request. However, a number of the matters discussed in the sentencing remarks have been raised in oral and written evidence presented to the Tribunal by LQVM and, where relevant, are included as part of the cited evidence.
LQVM’S HISTORY
LQVM is in her late forties. She is a citizen of Vietnam. She completed secondary school and undertook tertiary study. She ran her own business as a pawnbroker and in the housing sector, purchasing, then renovating and selling homes. She employed up to 30 people at a time. LQVM described the business as successful. She was able to fund her children’s studies in Australia and to purchase property here.
LQVM has two sons through her first marriage. One is now in his late twenties and the other in his late teens. LQVM and her husband divorced in 2006 after some 17 years of marriage. She attributed the breakup to his infidelity and his physical domestic violence.
LQVM formed a new relationship with an Australian citizen of Vietnamese heritage in 2008 but that relationship broke up over financial disputes and domestic violence issues. LQVM said that she was in the early stages of pregnancy when he assaulted her and as a result, she suffered a miscarriage. She also told of how he coerced her into paying a large deposit on a home which the so-called vendor did not actually own and that he spent money on gambling. LQVM said that she moved into a refuge to get away from him. She told the Tribunal that he had undertaken to sponsor her on a partner visa but that she turned him down after his unacceptable behaviour.
LQVM subsequently entered into another relationship in Australia with a much older man. She said that he appeared kind and understanding in the beginning but that it was he who had coerced her to participate in criminal activities. She told the Tribunal that she had returned to Australia after a trip to Vietnam when she discovered he had planted a cannabis crop in their home. LQVM said she experienced domestic violence in all three of her relationships.
LQVM said that her third partner had induced her to purchase the freehold and business of a sewing factory with 100 employees in Melbourne owned by one of his friends and that she had transferred over $200,000 in cash from Vietnam to do so. However, the vendor’s wife, a partner in the business and co-owner of the property, did not wish to sell. LQVM said that her partner and his friend undertook to return the money but had not done so. She later discovered it had been a deception.
Asked why a person who ran a large business in Vietnam and who had purchased and sold many properties there could be so easily deceived by two men she formed relationships with in Australia, LQVM said that the law and business practices in Australia were different to that of Vietnam in terms of when moneys are handed over and when the actual registration of change of ownership occurred.
As stated above, LQVM laid the blame for her participation in criminal activities on her third partner. She said she feared a violent attack if she did not do as he wished. LQVM said that her son sometimes accompanied her to thwart the possibility of violence. However, police evidence, including telephone interceptions, indicated that LQVM was personally involved in drug deals. She was arrested in November 2012 while driving her son from school during a police operation targeting the syndicate that she was part of.
HOW DO THE PRIMARY AND OTHER CONSIDERATIONS APPLY TO LQVM?
The three primary considerations are set out in Part B of Direction 65:
11 Primary considerations – visa applicants
(1)In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian Community.
Protection of the Australian community from criminal or other serious conduct
Paragraph 11.1 under Part B of Direction 65 states:
(1)When considering the protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen's conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraphs 11.1.1 and 11.1.2 of Direction 65 describe a number of principles that must be taken into account in considering the nature and seriousness of the criminal offending or other conduct to date. Pursuant to Paragraph 11.1.1(1):
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
LQVM was convicted of a number of drug related crimes including cultivation of cannabis by hydroponic means in a property in which she resided and trafficking in heroin and methylamphetamine (colloquially known as ice). She also used her teenage son as an interpreter and on at least one occasion, he handled a foil containing drugs and gave them to a customer. A charge of theft related to unregulated electricity use.
LQVM received a sentence of 4 years 3 months after pleading guilty and agreeing to testify against other syndicate members. LQVM was arrested in November 2012 in the course of a police operation. She pleaded guilty at her County Court hearing. Her sentence would have been considerably longer had she not made a guilty plea and agreed to testify in other proceedings. LQVM’s explanations of the circumstances of the criminal activity have been described earlier in these reasons for decision. Given the length of the sentence and the nature of the crime, the Tribunal considers the offences to be serious.
As per paragraph 11.1.1(1)(b) of Direction 65:
b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
There are no details of the ages or occupations of the people who were the targets of the sales of the drugs.
Pursuant to paragraph 11.1.1(1)(c) of Direction 65:
c) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
There is no evidence that LQVM has committed any crimes while in detention.
As per paragraph 11.1.1(1)(d) of Direction 65:
d) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
LQVM’s conduct is considered serious given the direction in this paragraph.
As per paragraph 11.1.1(1)(e) of Direction 65:
e) The sentence imposed by the courts for a crime or crimes;
The list of convictions was set out earlier. As was noted above, the sentence imposed by the trial judge indicates the serious nature of LQVM’s conduct.
As per paragraph 11.1.1(1)(f) of Direction 65:
f) The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
LQVM’s offences were committed over a period of months during 2012. They were all dealt with in the County Court in August 2014. There are no convictions prior to or after those offences.
As per paragraph 11.1.1(1)(g) of Direction 65:
g) The cumulative effect of repeated offending;
As indicated above, LQVM’s offences occurred in a defined period. She appears remorseful. However, she has been in detention since the offences and conviction.

As per paragraph 11.1.1(1)(h) of Direction 65:
h) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
There is no evidence that LQVM has provided false or misleading information to the Department. She was questioned by counsel appearing for the Minister about whether she conceded her guilt to the police immediately after her arrest but that is not the focus in relation to this criterion.
As per paragraph 11.1.1(1)(i) of Direction 65:
i) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The offences in question were committed in Australia, therefore this consideration is not relevant in this case.
Conclusion regarding the seriousness of the offences
The Tribunal concludes that the offences were serious.
The risk to the Australian community should LQVM commit further offences or engage in other serious conduct
Paragraph 11.1.2 of Direction 65 states:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
If LQVM cultivates or gets involved in drug trafficking in the future, the Tribunal finds that there would be significant harm to individuals or the Australian community. The impact on the community of the use of ice and the other drugs trafficked ranges from the harm to the individual to its impact on paramedics, hospitals and the safety of the community.
Further, the Tribunal is required to consider:
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence from independent and authoritative sources on the likelihood of the non-citizen reoffending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.
The Tribunal had before it prison records, psychologists’ and social workers’ reports and various other assessments that have all described LQWM as being a low risk of reoffending. LQVM appears to have been a “model prisoner” during her time in prison. She was in charge of the prison kitchen whilst incarcerated. She has never tested positive for drug use.
LQVM was granted parole but was taken into immigration detention upon her release on parole. Her counsel cited figures that indicate that only 40 per cent of prisoners eligible for parole in Victoria are in fact granted parole.
Whilst in prison, LQVM learned to knit and has knitted beanies not only for family members but also for charities. In immigration detention, she has also been undertaking clothing alterations for fellow inmates. She undertook English language classes whilst in prison. She was not required to undertake drug education as she has never tested positive for drugs and does not appear to have been a user.
LQVM has expressed remorse for her crimes. Counsel for the Minister has pointed out that she has not yet been able to demonstrate how she would behave in the community as she has been in prison or immigration detention since November 2012.
On the basis of all the material, the Tribunal finds that the risk of re-offending is low. Whilst LQVM’s offending was serious, the available evidence indicates that she is unlikely to reoffend although as submitted by the Department, there has been no opportunity to assess this.
Whilst the Tribunal accepts that the risk of re-offending based on the available evidence is low, this criterion nonetheless weighs in favour of refusing the visa.
Best interests of minor children in Australia affected by the decision
LQVM has a three year old grand-daughter in Australia whose interests are affected by the decision. LQVM’s daughter in law is an Australian citizen as is her grand-daughter. Her son and daughter in law returned to Australia about five months ago after living in Vietnam for some time. LQVM’s daughter in law had returned to Australia for her daughter’s birth and then returned to Vietnam to join her husband.
LQVM’s son gave evidence that he works six days a week as a forklift driver and each week on his day off takes his daughter to see her grandmother. The relationship between grandmother and grand-daughter was described as close, with the youngster not wanting to leave the detention centre and her grandmother on each visit. Prior to their return to Australia, LQVM communicated with her grand-daughter over FaceTime.
LQVM’s son told the Tribunal that they hoped to have his mother live with them and care for their daughter. His wife is currently at home but would like to resume work. Whilst his wife’s family is in Australia, her mother and sister are involved in a relatively new seven days a week business and are unable to assist.
The Minister’s counsel submitted that less weight should be given to this criterion where the relationship is non-parental or there have been long periods of absence. The evidence given in the hearing indicated that the contact has been in person since her son’s return to Australia and previously was by electronic communication, although clearly this would have been limited until the child was old enough to appreciate screen communication.
The best interests of LQVM’s grand-daughter are to be able to physically spend time with her grandmother. This primary criterion weighs in favour of not refusing the visa.
Expectations of the Australian Community
As has been pointed out in Direction 65, the Australian community would expect a person who has committed serious crimes to not be allowed to be granted a visa.
The community generally has little sympathy for persons dealing in drugs for monetary gain. Furthermore, LQVM had been in Australia on a temporary residence visa for less than six years when she committed the offences. She was not a youth who was led astray but an adult in her mid-forties when she committed the offences.
The Tribunal had numerous references from members of the Vietnamese community who have been regularly visiting LQVM in detention. Members of a Vietnamese women’s group attended the Tribunal on the day of the hearing to offer support. They provide LQVM with Vietnamese food and conversation when they visit.
A prominent male member of the Vietnamese community, who has held leadership positions in a well-known community group, also provided a reference and gave oral evidence at the hearing. He offered support to help LQVM re-establish herself. He and the visiting women’s group were all of the view that LQVM posed no risk to the community, had served the sentence imposed and should be granted a visa. Other referees offered her work knowing of her skills in sewing and being of the view that she posed no risk if released from detention.
Notwithstanding the excellent support offered by the volunteer Vietnamese community members who did not meet LQVM until she was in immigration detention, the Tribunal finds that the general view of the Australian community is that a person with LQVM’s record should not be granted a visa. This consideration weighs in favour of refusing the visa.
Other considerations – visa applicants
Paragraph 12(1) of Direction 65 sets out other considerations that must be taken into account where relevant. The considerations include but are not limited to:
a)International non-refoulement obligations;
b)Impact on family members;
c)Impact on victims;
d)Impact on Australian business interests.
International non-refoulement obligations
LQVM is a citizen of Vietnam who has been found to be a person who merits Australia’s protection and therefore meets the relevant criteria, apart from character and any other outstanding criteria, for a protection visa. The Tribunal is bound by the MRD’s decision and is not entitled to revisit the decision in order to determine whether it would come to the same conclusion as its colleague. The international non-refoulement obligations are therefore relevant in this case.
The MRD’s decision dated 11 January 2016 was worded as follows:
The Tribunal remits the matter for reconsideration and directs that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
Paragraph 12.1 of Direction 65 sets out the relevant guidance for this consideration as follows:
12.1 International non-refoulement obligations
(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 to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.
(3)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 refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
(5)If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also 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 – sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.
In her written submission to the Tribunal dated 16 December 2016, counsel for the Minister set out the options in this case if the Tribunal were to exercise its discretion to affirm the decision to refuse LQVM a protection visa on character grounds:
45. In the present case, there are a number of options available to the respondent which would be consistent with maintaining Australia’s international obligations, were the Tribunal to exercise its discretion to affirm the decision to refuse the applicant the protection visa. Those options are:
(a) first, the applicant could be subject to indefinite detention within Australia by operation of s 189 and s 196 of the Act;
(b) second, she could be issued with a Bridging R (Class WR)(Removal Pending) visa, permitting her to remain in Australia temporarily on the basis that her position would be reconsidered in three years or until the respondent is satisfied that the applicant’s removal to a third country (other than Vietnam) is reasonably practicable and provided the applicant complies with Australian laws over that period; and
(c) third, the applicant could travel to a third country (other than Vietnam) where she would not be at risk of being returned to Vietnam.
LQVM’s legal team submitted that the most likely outcome of LQVM being refused the protection visa in the circumstances where Australia would not return her to Vietnam was indefinite detention. They pointed to assessments of LQVM’s mental health in the medical records provided to the Tribunal which provided her medical history whilst in detention. They pointed to deterioration in LQVM’s mental state where she was rated as well on a relevant psychological test in the early parts of her stay to being severely affected by mental health issues in December 2016.
In a report dated 24 November 2016, a counsellor and psychologist at Foundation House reported that LQVM had been referred for trauma counselling by a mental health nurse and had been seen twice during October 2016. The counsellor stated that LQVM suffers symptoms of chronic depression and anxiety. She stated that:
… [LQVM] ruminates constantly about decisions she has made in Australia leading to her incarceration. She suffers high anxiety about whether she will be returned to Vietnam. Her fear of being significantly harmed is extremely high….
…She shows extreme fear of return to Vietnam because of reprisals from the “black society”.
LQVM’s counsel also pointed to the high taxpayer costs of keeping LQVM in immigration detention as not being in the community’s interest.
Impact on family members
There would be an impact on LQVM’s son and daughter in law as well as her grand-daughter if LQVM was refused the protection visa. Her elder son, in oral and written evidence, identified the impact on him, his wife and daughter if the only time he could see her was a weekly visit to the detention centre. They hope to have LQVM live with them if she is released and allowed to stay in Australia.
Impact on victims
There is no evidence available that the grant of the visa would have an impact on any particular victims of LQVM’s crimes. Use of the drugs trafficked by LQVM harms those using them but there appears to be no information about any of the purchasers of the drugs involved.
Impact on business interests
There is no evidence that would suggest that the refusal of the visa would have an impact on Australian businesses.
CONCLUSION
The primary consideration regarding protection of the Australian community from criminal or other serious conduct, which weighs in favour of refusal of the visa, should be given quite a deal of weight due to the nature of LQVM’s offences. The expectations of members of the Australian community, as described in Direction 65, would also weigh in favour of refusing the visa given the crimes of which LQVM has been convicted.
On the other hand, the primary consideration regarding LQVM’s grand-daughter and the impact on her son and his wife, should also be given some weight in favour of the grant of the visa.
The non-refoulement provisions weigh in favour of the grant of the visa.
The balancing act in cases such as this one is difficult. In this case, in particular, the decision that LQVM warrants the issue of a protection visa given her risk of significant harm were she to return to her country of citizenship puts a different perspective on whether the discretion to set aside the refusal than it would for any other type of visa. If the Tribunal was considering a different class of visa, such as a partner visa, skilled visa or indeed a parent guardian visa such as that previously held by LQVM, the Tribunal may well have affirmed the delegate’s decision to refuse the visa on character grounds.
Whilst international non-refoulement obligations are no longer one of the three primary considerations as they had been under previous superseded Ministerial directions, they still have an important place in determining whether to set aside the refusal decision.
The Tribunal accepts that there may be a risk that someone who has committed offences of the nature of those undertaken by LQVM will again choose to take them up again and thereby harm the Australian community. However, in this case, the Tribunal is of the view that LQVM has served her time and is remorseful for what she did.
Based on evidence from the community, prison and parole officials, psychologists and others who have assessed LQVM and that of her elder son and her own evidence about her plans to re-establish herself, the Tribunal is of the view that the appropriate action in this case is not to refuse the visa on character grounds. The Australian community has little to gain by keeping her in indefinite detention, which would appear to be the likely outcome of a refusal. As stated earlier, the non-refoulement considerations enlivened by the fact that it is a protection visa that is involved in this matter has led to a different outcome to that were a different type of visa under consideration.
Having regard, in particular, to the principles referred to in Direction 65 and the findings made in relation to those principles, the Tribunal concludes that the preferable decision in this case is that the application for the visa not be refused.
DECISION
The Tribunal sets aside the decision under review and substitutes the decision that the discretion in section 501(1) of the Migration Act 1958 to refuse the applicant's visa on character grounds should not be exercised.

80. I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Ms Regina Perton, Member

...............................[sgd]............................
Associate

Dated 9 January 2017

Date of hearing 22 December 2016

Counsel for the Applicant Min Guo

Solicitors for the Applicant Asylum Seeker Resource Centre

Counsel for the Respondent Catherine Symons

Solicitors for the Respondent Sparke Helmore Lawyers

[2017] AATA 7

9 January 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies

Date of hearing	22 December 2016
Counsel for the Applicant	Min Guo
Solicitors for the Applicant	Asylum Seeker Resource Centre
Counsel for the Respondent	Catherine Symons
Solicitors for the Respondent	Sparke Helmore Lawyers