Luong and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 1063
•8 May 2023
Luong and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1063 (8 May 2023)
Division:GENERAL DIVISION
File Number: 2023/1075
Re:Tan Toan Luong
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:8 May 2023
Place:Melbourne
The Tribunal:
(a)Sets aside the decision under review;
(b)Substitutes a decision that there is another reason to revoke the mandatory cancellation of the Applicant’s visa; and
(c)Pursuant to s 43(5B) of the Administrative Appeals Tribunal Act 1975 (Cth), directs that this decision comes into operation at 2.00pm (AEST) on 9 May 2023.
...........................[sgd].............................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – Mandatory visa cancellation – citizen of Vietnam – Class BS Subclass 801 Partner visa – failure to pass good character test – substantial criminal record – recklessly cause serious injury – other general offending – Ministerial Direction No. 99 applied – reviewable decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)Migration Act 1958 (Cth)
CASES
AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
FYBR v Minister for Home Affairs & Anor [2020] HCA 056
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737
NRFX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 21
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497
Shi v Migration Agents Registration Authority (2008) 235 CLR 286 Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187
Sundrampillai v Minister for Immigration, Local Government and Ethnic Affairs (1992) 29 ALD 479
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466SECONDARY MATERIALS
Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Convention on the Rights of the Child (opened for signature 20 November 1989, 1577 UNTS 3, entered into force 2 September 1990)
Sentencing Advisory Council (Vic), ‘Imprisonment’, (Web Page, 28 April 2022) < align="left">REASONS FOR DECISIONSenior Member A. Nikolic AM CSC
8 May 2023
INTRODUCTION
The Applicant has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Class BS Subclass 801 Partner visa (“the visa”). The hearing was held on 2 and 3 May 2023 at the Tribunal’s Melbourne Registry. The Applicant was represented by Mr Quan Do, a registered migration agent from Endless Immigration Law Advisory. The Respondent was represented by Ms Emma Letcher-Boldt, a solicitor from Clayton Utz Lawyers.
For the following reasons, the Tribunal sets aside the decision under review and substitutes a decision that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
BACKGROUND
The Applicant is a 26-year-old citizen of Vietnam, who first arrived in Australia on 18 January 2012 with his mother and younger sister.[1] He was then 15 years of age. The Applicant’s father died in 2009[2] and his mother re-married a Vietnamese man living in Australia, who sponsored their migration. The Applicant has only left Australia once for a period of two months in 2015.[3]
[1] Exhibit R1, 54.
[2] Ibid 53.
[3] Ibid 121.
The Applicant studied in Australia to Year 10 level before working variously as a farm worker, in factories, and restaurants. He married on 27 December 2015 when 19 years of age, but this was short-lived after he commenced a relationship with another woman in 2017.[4] His wife separated from him, and they subsequently divorced in November 2020. The Applicant’s most recent romantic relationship ended in mid-2022 and he is single.[5]
[4] Ibid 55; 75.
[5] Applicant’s Statement of Facts, Issues, and Contentions (“ASFIC”), 5.
On 7 August 2020, a delegate of the Minister cancelled the Applicant’s visa.[6] This followed the Applicant’s conviction on 14 February 2020 for Recklessly cause serious injury, which resulted in a sentence of three years imprisonment. The Applicant committed this offence on 21 November 2017 when he was 20 years of age.
[6] Exhibit R1, 128-134.
The Applicant made representations between September 2020 and November 2022 for the visa cancellation to be revoked,[7] but on 17 February 2023 a delegate of the Minister declined to do so (“non-revocation decision”).[8] On 22 February 2023, the Applicant asked the Tribunal to review the non-revocation decision.[9]
[7] Ibid 47-120.
[8] Ibid 8.
[9] Ibid 1.
The Tribunal must decide this application within 84 days of the Applicant being properly notified of the reviewable decision.[10] This falls on 12 May 2023, which is five working days after the hearing.
[10] Section 500(6L) of the Act.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”), read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test. This includes if the non-citizen has been sentenced to a term of imprisonment of 12 months or more. The Minister is required under s 501CA(3) of the Act to provide notice of the cancellation decision as soon as practicable, and invite the affected person to respond. Under s 496 of the Act, the Minister may delegate these powers
Section 501CA(4) of the Act confers a discretionary power upon the Minister or their delegate to revoke the original decision, if the Minister is satisfied the person passes the character test, or there is another reason why the original decision should be revoked. Non-revocation decisions by ministerial delegates are reviewable by the Tribunal.[11]
[11] Section 500(1)(ba) of the Act, read in conjunction with s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
ISSUE TO BE DETERMINED
The Applicant concedes he does not pass the character test,[12] which arises as a matter of law.[13] The Tribunal finds he does not pass it because of his February 2020 conviction and imposition of a three-year sentence of imprisonment. The issue to be determined, therefore, is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so.[14] The Full Court in Bettencourt[15] provided guidance about how this is determined. Their Honours reflected with approval upon the approach taken in Viane[16] in summarising the following principles at [27]:
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[12] ASFIC, 7 [14].
[13] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666, [63]
[14] The Act, s 501CA(4)(b)(ii); Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[15] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294.
[16] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
More recently, in Plaintiff M1/2021,[17] the plurality of the High Court stated how representations made under s 501CA(4) of the Act should be approached:
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
(Citations omitted).
[17] Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (‘Plaintiff M1/2021’), [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).
DIRECTION 99
In making its decision, the Tribunal must comply with a ministerial direction, made under s 499(1) of the Act, and known as ‘Ministerial Direction 99’ (“the Direction”).[18] This commenced on 3 March 2023, which means that although the non-revocation decision was made under an earlier Direction, the current matter must be decided under Direction 99.[19] The Tribunal’s decision is based on the material currently before it, rather than what was before earlier decision-makers.[20]
[18] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 497, [4] (Rares, O’Callaghan and Jackson JJ); Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 (‘Nathanson’), 2 [4].
[19] Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48 (‘Jagroop’) [4]-[6] (Dowsett, Kenny and Mortimer JJ).
[20] AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175, [25] (Wigney, Abraham and Rofe JJ); Nathanson; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ).
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision. Clause 8 of the Direction identifies the following primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The strength, nature, and duration of ties to Australia;
(d)The best interests of minor children in Australia;
(e)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations as folows:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to information and evidence from independent and authoritative sources.
Clause 7(2) states that primary considerations should generally be given greater weight than the other considerations. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[21]
[21] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that one or more primary considerations may outweigh other primary considerations. The weighing process, however, is left to individual decision-makers.[22]
EVIDENCE
[22] Jagroop [57].
Documentary evidence
The following documents were taken into evidence:
(a)G-Documents numbering 212 pages;[23]
[23] Exhibit R1.
(b)Bundle of summonsed documents numbering 44 pages;[24]
(c)Applicant’s three-page statement dated 1 April 2023;[25]
(d)One-page Statutory Declaration of the Applicant’s stepfather dated 3 April 2023;[26]
(e)Two-page Statutory Declaration of the Applicant’s cousin dated 3 April 2023;[27]
(f)Two-page Statutory Declaration of the Applicant’s mother dated 3 April 2023;[28]
(g)One-page statement of the Applicant’s sister dated 3 April 2023;[29]
(h)One-page Statutory Declaration of the Applicant’s brother dated 3 April 2023;[30]
(i)Two-page Statutory Declaration from another cousin dated 3 April 2023;[31]
(j)Paper titled: ‘Reoffending by children and young people in Victoria’ dated December 2016 from the Sentencing Advisory Council;[32] and
(k)Paper titled: ‘Who returns to prison? Patterns of recidivism among prisoners released from custody in Victoria in 2002 and 2003’, published by Melbourne University in April 2007.[33]
[24] Exhibit R2.
[25] Exhibit A1.
[26] Exhibit A2.
[27] Exhibit A3.
[28] Exhibit A4.
[29] Exhibit A5.
[30] Exhibit A6.
[31] Exhibit A7.
[32] Exhibit A8.
[33] Exhibit A9.
Applicant’s evidence
The Applicant was assisted in giving his evidence by an interpreter in the Vietnamese language. He adopted his statement dated 1 April 2023 as true and correct. His evidence took up much of the first hearing day.
The Applicant referred to difficulties confronting his family while living in Vietnam, including his father’s untimely death in 2009 when the Applicant was 13 years old. He said this adversely affected his mental health, caused him to lose focus on studies, abuse alcohol, and associate with negative peers. The Applicant said his mother commenced a new relationship approximately three years after his father died. His stepfather subsequently sponsored their migration to Australia. The Applicant spoke positively about his stepfather, saying he always treated the family well and supported the Applicant.
The Applicant has always resided with his mother and stepfather since arriving in Australia. He said the first time he got into trouble with police was either in late 2015 or early 2016, but he did not inform his family. The Applicant said he disclosed minor problems to his parents at times but kept ‘major ones to [him] self’, because he did not want to burden them with the consequences of his conduct. The Tribunal inferred from the Applicant’s evidence that he kept bad news to himself because of shame and embarrassment. That changed after his arrest for the violent offending in 2017, with the Applicant stating: ‘After being put in jail I called my mum and told her everything…Before I was thinking I didn’t want my family to worry about my situation, but I was wrong’. This evidence was corroborated by the Applicant’s family members, who persuasively conveyed that he was a quiet, respectful, and supportive family member. The news of his criminal past and drug use shocked them.
When asked about a conviction for cultivating cannabis in 2016, the Applicant said this was for possessing a ‘small cannabis plant’.[34] He agreed there was another occasion when police found approximately two or three grams of cannabis in his possession. When asked about records disclosing that police found a larger quantity of cannabis in his possession in 2019, the Applicant estimated this was ‘less than 10 grams’ and said the charges are yet to be proceeded with four years later.[35]
[34] Exhibit R2, 24.
[35] Exhibit R1, 29.
The Applicant agreed there were a small number of occasions in late 2015 when he and co-offenders stole items from unsecured cars.[36] He estimated these thefts earned him less than $300. He also agreed that his convictions during two court appearances in 2016 and 2017 included failing to answer bail and non-compliance with the work conditions of his Community Corrections Order. He said this was because of poor English, not understanding the scope of conditions imposed on him, a limited understanding of the law, and competing employment demands.
[36] Exhibit R2, 20; 22.
In terms of his most serious offence of recklessly causing serious injury, the Applicant said this occurred on 21 September 2017. He expressed remorse for this conduct several times and said he asked during a police interview if he could apologise to the victim, but this was denied. He later became aware the victim was under 18 and could have died, which added to his remorse. The Applicant agreed his crimes from late 2015 until the stabbing incident were of increasing seriousness. He also agreed his behaviour resulted from mixing with adverse peers and often because of alcohol and cannabis abuse. He said this impeded clear thinking and caused him to act stupidly. He stated that he will never repeat this conduct if allowed to remain in Australia.
The Applicant said he remained compliant in custodial settings and finished several rehabilitative courses. These reinforced the importance of abstinence from drugs, alcohol, and armed him with strategies to control his anger and not let conflict escalate out of control. The Applicant has not made plans for future rehabilitation but is willing to attend more drug and alcohol programs if required. He feels that a prolonged period in custodial settings has enabled him to overcome past reliance on alcohol and drugs and strengthened his commitment not to resume associations with negative peers. If released, his priorities are to find work and live a productive and law-abiding life with his family. The Applicant said past concealment of his troubles from family members was a mistake and he is now more open and ready to act on their guidance and support.
In terms of minor children in his life, the Applicant said he has a loving relationship with his youngest sister and nephew. He talks with them weekly by video call when permitted in detention, but they have not visited him during COVID-19 restrictions because of their immunisation status. The Applicant agreed he does not perform a parental role for either child but remains very close to both.
If released in Australia, the Applicant said he intends living with his parents in Melbourne, although his mother prefers that the family relocates interstate where his brother owns and operates a successful restaurant. The Applicant said he is agreeable with either plan and aspires to resume work in the hospitality industry. Eventually he wants to qualify as a chef. The Applicant said his first term of imprisonment, followed by immigration detention, has delivered hard and salutary lessons, including the importance of his family. When asked why the Tribunal should be confident family support is a compelling protective factor when it has not been in the past, the Applicant said he is now more open with his family and accepting of their guidance.
The Applicant said he has no physical or psychological conditions and does not take any medication. He has returned to Vietnam once with his mother to visit relatives and his father’s grave, but they stayed in a hotel rather than with relatives. His maternal grandparents live in Vietnam, but they are old, in poor health, and supported by family in Australia. The Applicant said there are two or three maternal aunts / uncles, and approximately six cousins living in Vietnam, but he does not maintain contact with them. One of his deceased father’s brothers continues to live in Vietnam, but most other members of his father’s family are in Australia. The Applicant said he does not maintain contact with past friends in Vietnam, because he has lived in Australia for 11 years and lost contact with them. He does not have much support to rely upon if returned to Vietnam and worries about finding a job, stable accommodation, and providing for his daily needs. He believes that his capacity to live independently will also be compromised by a criminal record in Australia, which will cause people in Vietnam to look at him with ‘different eyes’.
Evidence of the Applicant’s stepfather
The Applicant’s stepfather gave evidence with the assistance of an interpreter in the Vietnamese language. He adopted his Statutory Declaration as true and correct. He said that after marrying the Applicant’s mother, the family got on very well together and the Applicant is a good son. He has remained consistently supportive of the Applicant because he is loving and respectful. The witness said he trusts the Applicant’s commitment about living an abstinent and law-abiding life when released. He said the Applicant has ‘learned a big lesson in prison’ and is now ‘more mature’. He will provide the Applicant ‘unconditional support’.
The witness said he sometimes drank alcohol with the Applicant to what he stated was within a normal range but was unaware of any cannabis use. He never asked the Applicant about drug use because he never detected any sign of it. The witness said he only became aware of the Applicant’s crimes after his arrest and the family was shocked. The witness blamed himself for not being alert to the Applicants conduct outside of the home because he worked very hard six days a week to support his family. He routinely left home before 05:00 am and did not return until 7:00 pm. He still does not have a full understanding of all the Applicant’s offending but is aware the most recent matters involved a stabbing incident and possession of cannabis.
The witness said he changed jobs approximately two years ago and has had meaningful conversations with the Applicant about a brighter future. He is now better placed, with other relatives, to spend more time with the Applicant and provide the guidance he requires. He also stated: ‘As a whole family we intend moving [interstate] to where our older son is living…He has opened up his own business...We’re still discussing our plan…because it is a big decision that means we would have to sell our house in Melbourne’.
The witness said his wife’s parents, who are elderly and unwell, and her two younger brothers live in Vietnam. Her father is now in a wheelchair. The family in Australia financially support’s them with regular contributions. When asked if they would also financially support the Applicant if he was returned to Vietnam, the witness said they would, but their priority is to continue supporting his wife’s parents. The Tribunal inferred from the witness’s responses that the family has limited financial resources and are not well placed to support the Applicant in addition to their existing support of elderly relatives.
Evidence of the Applicant’s cousin
The Applicant’s cousin is an Australian lawyer. He adopted his Statutory Declaration as true and correct. The witness has known the Applicant and his family for most of his life and they remain ‘tight knit. He referred to the Applicant’s difficult life circumstances while living in Vietnam and the challenges of a new life in Australia. He said contact with the Applicant was less frequent after the witness got married, had children, and pursued his career, but he continued to interact with the Applicant at family gatherings and other events. He believes the Applicant did not disclose troubles with the police to those closest to him, because he was ashamed and did not want to burden them.
The witness described the Applicant variously as ‘sincere, kind, gentle, polite, and respectful’. He has never observed the Applicant acting negatively or with a ‘questionable demeanour’. The witness said he is fully aware of the Applicant’s past offending, having spoken with his barrister, reviewing the criminal brief against him, and reading the documentary materials in the current proceeding. He said the Applicant has experienced valuable lessons in custodial settings and from the visa cancellation process. This includes the importance of abstinence from substances and maintaining separation from negative peers. Having known the Applicant his whole life, the witness considers the Applicant is ‘extremely remorseful’ and sincere in his undertaking never to reoffend.
If the Applicant is released in Australia, the witness said he will provide financial support and continuing ‘guidance and mentorship’, as he has done for the Applicant’s older brother. The latter has now established a successful business interstate. The witness said the Applicant has not yet finalised plans for release in Australia because of uncertainty about whether he will be allowed to stay, but can rely on closer family support if given a chance. The witness is confident the Applicant can work in his brother’s business. The witness is also willing to leverage his network of business friends to help the Applicant commence a trade apprenticeship or train as a barista. Even if the Applicant moves interstate with his family, the witness said he will continue providing guidance and mentoring through calls and visits, to ensure the Applicant remains ‘on the right track’. The witness believe the Applicant is now ‘definitely frank and an open book’ with his family, which will enable him to deal with future stressors in a more supported way.
Evidence of the Applicant’s mother
The Applicant’s mother gave evidence with the assistance of an interpreter in the Vietnamese language. She adopted her Statutory Declaration as true and correct. The witness referred to her family’s difficult circumstances while living in Vietnam, including the unexpected death of her husband in 2009. She said her current husband showed sympathy for their situation and they began a new life in Australia. She had a baby about a year after arriving in Australia, suffered depression, and was unable to spend as much time as she would have liked with the Applicant. She expressed regret that her inattention may have contributed to the Applicant associating with negative peers and breaking Australia’s laws.
The witness referred to the Applicant as a good and respectful son. She did not previously detect any sign or tendency towards violence or drugs, and believes he covered up his offending so she would not feel sad or burdened. She is aware his most recent offending involved ‘assaulting’ another person. They had since had many good discussions during which the Applicant was ‘very remorseful’ and determined never to reoffend. If allowed to remain in Australia, their family intends moving interstate to be with the Applicant’s brother who operates a successful restaurant business. She expects the Applicant will follow his older brother’s passion for cooking and working in the hospitality industry.
The witness said the Applicant is very close to his sister and nephew and did a lot for them when in the community. At the Tribunal’s request she tendered a picture drawn by the Applicant’s youngest sister, which expresses her love for the Applicant.
Evidence of the Applicant’s sister
The Applicant’s eldest sister gave oral evidence predominantly in English and occasionally with the assistance of an interpreter in the Vietnamese language. She adopted her Statutory Declaration as true and correct. The witness is aware of the Applicant’s violent offence, but not other convictions. She referred to their family situation as very close, and previously had no reason to suspect the Applicant may have problems with alcohol or drugs. The witness strongly believes the Applicant will remain law-abiding if released. She works and is willing to support him financially, practically, and emotionally. The Applicant is very close to her son and never misses his birthday or other special occasions. He buys the child presents, takes him to the park, and engages in other fun activities. If the Applicant is permitted to remain in Australia, the witness said the family will happily relocate interstate with him to be closer to an elder brother who operates a successful business.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) 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.
The nature and seriousness of the conduct
Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(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 197 A 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 reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant has been sentenced by Australian courts at three appearances between 2016 and 2020. His crimes fall into several categories as follows:
(a)Violent offence. The Applicant’s conviction for Recklessly cause serious injury is his most serious offence. The Court referred to the Applicant’s conduct as an ‘inherently serious’ example of this type of offence, including because of the life-threatening injuries he caused. The Court held it was a ‘vicious and cowardly’ attack committed against a young, unarmed, and vulnerable victim who was affected by alcohol and ‘clearly outnumbered…by other assailants’ known to the Applicant.[37] These other assailants punched the victim to the head, body, and forced him to the ground. It was then the Applicant forcefully stabbed the victim in the back with scissors. The victim fled the scene and it was later discovered the stabbing caused his lung to collapse. He was hospitalised for six days, where chest tubes were inserted. Without this, the victim would have died.
(b)Drug offences. Such as possession, use, and cultivation of cannabis.
(c)Breaches of conditional liberty. This includes committing indictable offences while on bail, failing to answer bail, and contravening a Community Correction Order. A noteworthy aspect of the Applicant’s history is that he was not dissuaded from further crimes by a court appearance when 19 years of age, where he received non-custodial punishments.
(d)Dishonesty offences. This includes retention of stolen goods, obtaining property by deception, theft from motor vehicle, and dealing with property suspected of being the proceeds of crime.
(e)Dangerous and unlicenced driving.
[37] Ibid 40 [43].
Although some of the Applicant’s drug and dishonesty offending is not particularly serious, his violent offence is very serious and could have ended the victim’s life. This is reflected by an upper penalty of 15 years’ imprisonment for Recklessly cause serious injury.[38] Imprisonment is a sentence of last resort and the most severe sanction available.[39] The sentence of three years’ imprisonment imposed on the Applicant is above the median length of imprisonment for crimes of this sort.[40] Dangerous driving also has the potential to cause the death of other road users or pedestrians.
[38] Ibid 39 [40].
[39] See e.g. Sentencing Advisory Council (Vic), ‘Imprisonment’, (Web Page, 28 April 2022) <
[40] Ibid 43.
There is only one violent offence disclosed by the Applicant’s criminal history, but the overall frequency and type of offences he has committed over time reflect a trend of increasing seriousness. This includes because of the repeat nature of some categories of offending, which reflects a concerning lack of insight and disregard for the Court’s corrective penalties. The Tribunal adopts the Court’s finding that the Applicant has a ‘troubling criminal history’. The cumulative effect of his conduct has created adverse consequences for his victims and the broader community. The Tribunal rejects the Applicant’s claims that his ‘offending, including the lead up to his imprisonment, is often juvenile’. All the Applicant’s convictions were as an adult.
In addition to the Applicant’s criminal history, the Tribunal can consider ‘other conduct to date’ under this primary consideration.[41] This includes prison records or other evidence of misconduct. There is no evidence the Applicant has been other than compliant in custody. When asked to confirm this during the hearing, the Applicant voluntarily disclosed one minor incident in prison where he was fined $50 for slight damage to a wall.
[41] Clause 8.1.1(1) of the Direction.
The totality of the Applicant’s offending and other misconduct is very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers 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.
Clause 8.1.2(2) of the Direction states that in assessing the risk non-citizens pose to the Australian community, decision-makers must take into account, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; 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).
The harm caused by a repeat of the Applicant’s offending is potentially significant. It could encompass death, or serious physical or psychological injury. Emotional distress and psychological harm could also be caused to the families or friends of victims. Any repeat of the Applicant’s past conduct would also impose financial costs on the community in terms of police, court, and other resources required to deal with the consequences of his crimes.
The Applicant reportedly commenced drinking alcohol at 12 or 13 years of age and started using cannabis at 18. He has experimented with methamphetamine and admits to using cocaine recreationally on occasions.[42] He contextualises his alcohol and drug use, in part, as a response to his father death in 2009. Submissions on the Applicant’s behalf refer to him admitting to an ‘inferiority complex’, being unable to ‘effectively manage emotions and make sensible decisions’, and an ‘attachment to his perceived friends for a misguided sense of self-worth’.[43] It is further submitted he has ‘gone to great lengths to hide his criminal offending and other delinquent behaviour from his family’. In relation to the stabbing offence, the Applicant claimed to have been ‘a little bit tipsy’ and angered by the victim’s unwillingness to apologise to his girlfriend for unwanted sexual advances.[44]
[42] Ibid 104 [40]-[43].
[43] ASFIC, 7 [13].
[44] Exhibit R1, 32 [4]; 35 [18].
The sentencing remarks refer to the Applicant having anger management issues, which he is yet to address through counselling.[45] Reference was also made by the Court to the Applicant having ‘some remorse’, conditioned by the following observations:
‘The issue of remorse is a nuanced one, however. Whilst I am prepared to accept that your preparedness to plead guilty to this charge indicates that you have some remorse, it would seem that it has been an evolving situation in your case. It must be recognised that you were not remorseful or fully frank at the time that you were interviewed by police. Initially, you chose to deny any wrongdoing. Later, you opted to admit using the scissors but claim that it was an accidental infliction of injury for which the victim was to blame.’[46]
[45] Ibid 38 [30].
[46] Ibid 38 [33].
In terms of rehabilitation, the Court considered the Applicant’s prospects to be ‘reasonable’.[47] The Applicant stated in his September 2020 revocation submissions that he is a ‘calm person by character’ but that the violent offence ‘made [him] think about taking another anger management course when…released’. The Applicant referred to completion of the following courses while imprisoned:
(a)Young Adults Readiness Program completed on 28 September 2020;[48]
(b)Know the Score Program completed on 26 August 2021;[49] and
(c)Moderate Intensity Violence Program completed on 27 November 2020.[50]
[47] Ibid 39 [37].
[48] Ibid 116.
[49] Ibid 115.
[50] Ibid 117.
Forensic psychologist Ms Carla Ferrari was not called to give evidence and could not be cross-examined. She stated in a report dated 24 January 2022,[51] however, that the Applicant ‘completed a 48-hour AOD program with Caraniche whilst in custody’.[52] Based on the history taken from the Applicant, Ms Ferrari said he developed Alcohol Use Disorder after his father died, which he overcame, but then developed Cannabis Use Disorder.[53] Ms Ferrari assessed at the time of her report that ‘no formal diagnosis of any psychiatric issues’ was warranted.[54] She said the Applicant has ‘struggled with drug and alcohol use to manage acute periods of stress…in the context of major life events…’, which would benefit ‘from continued AOD treatment once released’.[55] She also considers he would benefit from psychological treatment to ‘learn how to better manage stressors as he often experiences subclinical threshold symptoms of depression when faced with major life events’.[56]
[51] Ibid 102-112.
[52] Ibid 105 [44].
[53] Ibid 108 [80] – 109 [82].
[54] Ibid 106 [68]; 109 [83]; 110 [92].
[55] Ibid 109 [83].
[56] Ibid 11093].
Ms Ferrari assessed the Applicant to be a low risk of future violent recidivism:
‘Mr Luong’s case indicates a low risk in relation to future likelihood of violent recidivism. A low-risk range indicates that the individual has few risk factors associated with reoffending and is considered a minimal risk to the community, and a remote or lesser risk of reoffending…
Mr Luong presents as a well-adjusted individual which is supported by his psychometric testing results, and the incident for which he was convicted was an isolated situation in which there were extenuating circumstances which affected his judgement and conduct.
He demonstrates a history of compliance when conditions are imposed upon him and is willing to comply with any directions indicated to him by the Department of Home Affairs in relation to his visa.’[57]
[57] Ibid 74-76.
In terms of protective factors, the Applicant invokes factors such as stable accommodation with his parents, good prospects of employment, and a supportive network of family and friends. The evidence discloses, however, these protective factors were insufficient in the past to nudge his life into an abstinent and law-abiding direction. Indeed, his own evidence is that he went to ‘great lengths to hide his criminal offending and other delinquent behaviour from his family’. This includes falling back into associations with adverse peers and continuing to rely on alcohol and substance abuse during stressful times. This diminishes the force of his submissions that the interests of his family and their support will ameliorate his future recidivism risk. That said, the Tribunal accepts the persuasive weight of evidence that the Applicant was consistently respectful in the home and concealed his crimes from those closest to him because of shame and to spare his family from worry. It is also accepted his circumstances now are different to those previously existing. His immediate family are aware of past convictions and substance abuse. They are also more alert to his need for closer guidance, support, and mentoring. Their collective commitment to provide the Applicant with financial, practical, and emotional support in Australia is persuasive and impressive. The Applicant is lucky to have them in his life.
The Tribunal does not accept, however, that the Applicant’s abuse of alcohol or drugs since a young age, because of difficult incidents in his life, persuasively explains or reduces his culpability. Many people experience the death of a parent or someone close to them without resorting to crime. The Applicant’s troubles largely arise from mixing with the wrong people and poor personal choices. The Tribunal’s concerns are amplified by past occasions when the Applicant reoffended while on bail or was non-compliant with conditional liberty provisions. It is accepted, however, that some of this is attributable to language and cultural issues after arriving in Australia. In terms of his rehabilitation, the Tribunal accepts Ms Ferrari’s opinion that the Applicant has some unmet rehabilitative needs but notes that decisions should not be delayed for rehabilitation to be undertaken.[58] The Tribunal also accepts the collective evidence of the Applicant and his family members that he is willing to engage in further rehabilitative programs if required.
[58] The Direction, cl 8.1.2(2)(b)(ii).
The Tribunal found aspects of the Applicant’s evidence sought to minimise his personal culpability. He was warned on two occasions to be more forthright. Examples include the financial benefit he claimed to have gained from petty thefts and the extent of his drug experimentation. Another example is his documentary claim that his family are ‘very sad that one unfortunate incident has caused [him] to be away from them and suffer so much’.[59] This substantially understates the full extent of his past conduct. In his statement the Applicant also claims the stabbing incident occurred at a ‘party’ where he was not expecting to confront the victim, is ‘not sure what came over [him], and only ‘snapped back’ to reality as the Applicant was running out of the shed’. The Tribunal is more persuaded by the Court’s finding that the setting was an arranged drug purchase, and the Applicant’s offending was ‘not wholly spontaneous’.[60] The sentencing judge opined that the Applicant ‘wanted to teach [the victim] a lesson’ and ‘must have appreciated there was a high degree of probability of causing him serious injury’.[61] The Tribunal’s concerns about aspects of the Applicant’s evidence, however, are somewhat ameliorated by the sense that his responses are conditioned by shame and contrition. Having observed the Applicant closely during the hearing, he found it very difficult to have the past negative aspects of his life laid bare before those he is closest to. He presents as someone with strengthened commitment not to reoffend.
[59] Exhibit R1, 60.
[60] Ibid 32-35; 39 [41].
[61] Ibid 40 [43].
The Tribunal accepts the Applicant’s single violent offence was isolated, committed at a young age, and resulted in his only sentence of imprisonment. The Tribunal is also persuaded that his first custodial experience has been shocking and salutary. There is no evidence the Applicant has been other than compliant in custodial settings. The Tribunal accepts the dire risk to his ability to remain in Australia, is a contextually different situation than existed in the past. The Applicant seems to understand clearly that any further crimes will likely end his prospects of remaining here.[62] The Tribunal’s findings are strengthened by Ms Ferrari’s opinions regarding his remorse, insight, and low risk of violent recidivism. The Tribunal considers, however, given the repeat nature of some offending, that the Applicant constitutes at low-to-moderate risk of general recidivism.
[62] Ibid 96.
It is submitted on the Applicant’s behalf that ‘little to no weight’ should be placed on this primary consideration because the Applicant ‘shows no threat to the Australian community and has shown life changing improvements in soundness and reliability in moral judgement in dealing with others’. The Tribunal disagrees. The Applicant has shown himself to be a threat to the community on several past occasions and the claim about ‘life changing improvements’ remains untested in the community. Any ‘soundness in moral judgement in dealing with others’ is relatively recent and follows a prolonged period of poor judgement that caused harm to others.
The Tribunal considers the Applicant represents a low risk of violent offending. The very serious nature of his violent crime, however, falls into a category where even a low risk of recurrence weighs more heavily because of the potentially devastating consequences. The nature and seriousness of the Applicant’s offending, coupled with a low risk of violent offending, and low-to-moderate risk of general offending, weighs substantially against revocation.
Family violence committed by the non-citizen
The evidence does not disclose any family violence committed by the Applicant within the meaning of the Direction. This primary consideration therefore carries neutral weight.
The strength, nature, and duration of ties to Australia
Clause 8.3 of the Direction provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a. The length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant is 26 years of age. He has been ordinarily resident in Australia for about 11 years, attended high school here, and undertook some employment. His offending began relatively soon after arrival in Australia. The Applicant’s immediate family members in Australia consist of his mother, stepfather, older brother, two younger sisters, a nephew, and two cousins. There are statements from all except the two minor children. The Applicant’s unchallenged claim is that these family members fall within the meaning of cl 8.3 of the Direction, which the Tribunal accepts. The Applicant stated he has always been very helpful to his mother, sisters, and other relatives, and claimed that a non-revocation decision would take a ‘heavy toll’ on his family.
In his September 2020 revocation submissions, the Applicant referred to the interests of a girlfriend, with whom he had then been in a relationship with ‘for more than one year’.[63] In the same document, however, he described his current relationship status as ‘Separated’.[64] The Applicant has previously made the following claims regarding the impact on his girlfriend in the event of an adverse decision:
‘We lived together for several months in my mother’s house. We have plans for the future. We want to establish a family together. I am sure that [girlfriend name redacted] will be devastated. We are in love I am in prison because I wanted to protect her from an indecent perpetrator. We get along very well and have serious plans for our future’.[65]
[63] Ibid 54-55.
[64] Ibid 55 [Q.5].
[65] Ibid 55.
Submissions lodged by the Applicant’s lawyer on 6 October 2022 state that the Applicant is no longer in a relationship with this girlfriend who remains supportive of him.[66] There is no statement from her, however, and she was not referred to during the hearing. The Tribunal finds they are no longer in a relationship and no weight is placed on her interests.
[66] Ibid 90 [50].
The Tribunal has considered supportive Statutory Declarations, statements, and letters from the Applicant’s family members and friends. In terms of positive contributions, the Applicant referred to some past work, although during the hearing disclosed that much of this was for cash payments with no tax paid. There is limited evidence about his positive contribution to the community, which does not attract much weight.
Although the Applicant lived in Vietnam from birth until his early teenage years, his later teenage years and adulthood have been in Australia. What ties he has are predominantly here. The Tribunal accepts his immediate relatives would be emotionally impacted by a non-revocation decision. This is particularly so for the Applicant’s mother who was very emotional during the hearing and has previously suffered psychological ill health. On balance, this consideration weighs substantially in favour of revocation.
Best interests of minor children in Australia
Clause 8.4 of the Direction requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.
In his revocation submissions the Applicant entered ‘N/A’ as his response to most questions about the interests of children.[67] He did refer, however, to the interests of a child born in May 2015, who is his ‘half sister’.[68] He described their relationship as a ‘strong bond’ built on past babysitting, feeding, and other nurturing activities. He claimed that his absence from his sister’s life because of imprisonment and detention has adversely affected her, such that she is ‘not the same happy child anymore’.[69] The Applicant stated they would both find it ‘extremely difficult’ if he was returned to Vietnam. The Tribunal has earlier summarised the Applicant’s oral evidence about his relationship with this child.
[67] Ibid 56-57.
[68] Ibid 58-59.
[69] Ibid 59.
In submissions made by the Applicant’s then lawyer in September 2017, reference is only made to the interests of his half-sister.[70] In a statement dated 3 October 2022 and in written submissions from another lawyer in November 2022, the interests of the Applicant’s nephew are also raised.[71] It is claimed the Applicant plays an ‘older brother’ role for his nephew and the child remains ‘vulnerable to the effects of separation from [him]’.
[70] Ibid 78-79.
[71] Ibid 73; 88; 95 [26].
It was open to the Applicant to provide direct evidence from the two children in this matter, but the only document provided is a drawing from his half-sister, handed up during his mother’s oral evidence. The Applicant has stated through his representative that an adverse decision ‘will have a substantial adverse impact on the development and critical needs’ of the children’.[72] He claims this constitutes ‘breaking up the family unit’, which is ‘inhumane’ and a ‘contravention of the United Nations Convention on the Rights of the Child’.[73] The Applicant’s representative did not advance this claim at the hearing beyond a high level of generality. The Tribunal noted during the hearing that:
(a)Article 3 of the Convention provides for the best interests of the child to be a primary consideration in all actions concerning children;
(b)Article 9 of the Convention provides that a child ‘shall not be separated from his or her parents against their will, except when … such separation is necessary for the best interests of the child’; and
(c)Article 12 of the Convention provides that a child who can form their own views has a right to be heard in all matters affecting them, with those views given ‘due weight’.
[72] ASFIC, 17 [38]; Convention on the Rights of the Child (opened for signature 20 November 1989, 1577 UNTS 3, entered into force 2 September 1990) (“the Convention”).
[73] Ibid 17 [39].
The Tribunal rejects the claim that an adverse decision in this matter puts Australia in breach of its Convention obligations. That is because the best interests of children is already primary consideration under the Direction, which the Tribunal has considered based on the specific circumstances of the Applicant’s case. Moreover, an adverse decision does not separate either child from their parents. In any event, the Convention ‘does not impinge upon the right of a state to deport the parent of a child’,[74] even when ‘separation is contrary to the best interests of the…child’.[75] The Applicant does not play a parental role and there have been long periods of absence or limited meaningful contact with these children, including while he has been serving a sentence of imprisonment or in detention. The Tribunal finds that Australia does not breach its obligations under the Convention, even if the Applicant’s repatriation were to conflict with the children’s best interests.
[74] Sundrampillai v Minister for Immigration, Local Government and Ethnic Affairs (1992) 29 ALD 479, 485 (French J).
[75] NRFX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 21, [83] (Rangiah J).
The Tribunal finds that the interests of the Applicant’s half-sister are distinguished from those of his nephew, by virtue of the Applicant being the former’s only sibling and the significant time before she becomes an adult. Providing he can remain abstinent and law-abiding, there is a prospect the Applicant can play a very positive role. This is not to diminish the importance of the Applicant’s role with his nephew, but his avuncular role is not as extensive or as meaningful as the relationship with his younger sibling.
It is noteworthy that the interests of these children were insufficient to prevent the Applicant’s interaction with adverse peers or commission of increasingly serious crimes. That said, the Tribunal was impressed by the evidence from the Applicant’s parents, sister, and cousin, about the close and loving relationship the Applicant has with both children and the nurturing nature of his past association with them.
Considering the best interests of each child individually, the Tribunal finds that revocation is in the best interests of each child. On balance, this primary consideration carries moderate weight overall in favour of revocation.
Expectations of the Australian community
Clause 8.5 (1) of the Direction identifies the expectations of the Australian community:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, 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.
Clause 8.5(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a) …;
(b) …;
(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…;
...
Clause 8.5(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.5(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case.
Justice Mortimer has observed that this primary consideration is inextricably linked to Protection of the Australian community,[76] with the Direction making it clear that non-citizens who commit serious crimes should expect to forfeit the privilege of remaining in Australia.[77]
[76] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, [76].
[77] The Direction, cls 5.2(1)-(2).
Clause 8.5(4) of the Direction correlates with the reasoning in FYBR.[78] Notwithstanding the different pathways in judicial reasoning, the plurality held that this primary consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[79] The High Court refused an application for special leave to appeal from the orders in FYBR.[80]
[78] FYBRv Minister for Home Affairs (2019) 272 FCR 454, at 471–2 [66] (FYBR) (Charlesworth J), and 476 [91] (Stewart J).
[79] Ibid at 473 [75]–[76] (Charlesworth J).
[80]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Expansive submissions were made on the Applicant’s behalf regarding this primary consideration, which invoked several Tribunal and Federal Court cases.[81] There is no equivalent to judicial comity or stare decisis in the Tribunal. Moreover, the cases relied upon all pre-date FYBR, which is preferred. The Applicant’s submissions also impermissibly invite the Tribunal to consider community expectations in the context of the Applicant’s particular circumstances, which the Tribunal declines to do.
[81] ASFIC, 13 [31] – 16 [34].
The Tribunal rejects submissions on the Applicant’s behalf that this primary consideration ‘weighs heavily against cancellation of his visa’. The Applicant has committed a very serious violent offence that raises character concerns within the meaning of cl 8.5(2)(c) of the Direction. This is so because the victim was ‘particularly vulnerable’ by virtue of his youth. The Applicant has also committed other offences in breach of the privilege conferred on non-citizens in the expectation they will be law-abiding and respectful of important institutions like Australia’s law enforcement framework. The Australian community would expect, as a norm, that the Government would not allow the Applicant to remain in Australia. This primary consideration weighs at least moderately against revocation.
OTHER CONSIDERATIONS
Legal consequences of the decision
The Applicant did not raise any non-refoulement obligations and none are disclosed by the evidence. As an unlawful non-citizen, the Applicant must be detained in immigration detention and is liable for removal from Australia as soon as reasonably practicable.[82] There is no evidence this is not reasonably practicable. Nor is there any evidence about how long this process may take and the prospect of an extended period in detention, beyond the time the Applicant has already been detained, weighs somewhat in favour of revocation.
[82] The Act, s 198.
Extent of impediments if removed
Clause 9.2 (1) of the Direction provides:
(1) Decision-makers must consider 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 substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
The Applicant is 26 years old. He marked the ‘No’ box or stated ‘N/A’ on his September 2020 revocation submissions in response to the questions ‘Do you have any diagnosed medical or psychological conditions’, ‘Medication if applicable’, or whether he was receiving any treatment or counselling. He confirmed this during oral evidence.
There are no discernible language or cultural impediments to the Applicant’s repatriation to Vietnam given his formative years until the age of 15 were spent there. That said, after 11 years in Australia, including a considerable period in custodial settings, the Applicant would be confronted by a period of re-adaptation and may confront challenges reintegrating into Vietnamese society by virtue of his long absence and criminal history. This includes because of traumatic memories arising from the untimely death of a younger brother, his father, and the family’s difficult financial circumstances before migrating to Australia.
It is contended on the Applicant’s behalf that an absence of family support in Vietnam may cause him to ‘regress in his efforts to address his past substance abuse of alcohol and cannabis’, because ‘in the past, Mr Luong has turned to substances to deal with his difficult circumstances’. It is further submitted that:
Mr Luong would regress in his efforts to rehabilitate himself if he were removed permanently to Vietnam. His family members in Australia would feel burdened to provide financial and material support to Mr Luong which would affect their limited financial resources at the moment which have been spent assisting Mr Luong prior to and following his imprisonment. In the alternative, it would be preferable for Mr Luong to remain in Australia as he would be able to reintegrate himself into the Australian community which he is more familiar with. Mr Luong would be motivated by the presence of his family around him including his mother, sister, nephew and half-sister to pursue a positive path.
The evidence discloses that the Applicant has maternal grandparents in Vietnam, who the Tribunal accepts are elderly, in poor health, and financially supported by the Applicant’s parents in Australia. There is no evidence they would be able to extend other than perhaps emotional support to the Applicant. There is also no evidence other family members in Vietnam could assist his resettlement.
The Applicant has some work history in Australia and, on his own evidence, some savings, and superannuation to draw upon. His stepfather also stated the family would assist the Applicant if he was returned, although their priority is to continue their longstanding financial support of the Applicant’s maternal grandparents.
It is submitted the Applicant would ‘have extreme difficulties in adapting to the Vietnamese community’[83] and would ’not be able to maintain the basic living standards he has been able to maintain in Australia’. This contention is misconceived to the extent that it seeks to compare the Applicant’s ability to provide for his daily needs in the context of his life in Australia. The requirement in the Direction is to consider an applicant’s capacity to establish themselves and maintain basic living standards ‘in the context of what is generally available to other citizens of that country’. There is no evidence that if he needed it, the Applicant would not have the same entitlement to healthcare and other support services available to all Vietnamese citizens who meet the required prerequisites.
[83] ASFIC, 17 [36].
The Tribunal accepts that after living in Australia since 2012 the Applicant will be confronted by a period of re-adaptation. That said, the impediments confronting him are not insurmountable for someone of his age, health, and work history. On balance, the Tribunal finds this consideration weighs no more than moderately in favour of revocation.
Impact on victims
Clause 9.3 (1) of the Direction states:
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.
This consideration is not enlivened and carries neutral weight.
Impact on Australian business interests
Clause 9.4 provides that a decision-maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia. There is no evidence that Australian business interests are enlivened within the meaning of the Direction. This consideration therefore carries neutral weight.
Additional considerations
It is submitted on the Applicant’s behalf that an adverse decision constitutes further ‘punishment’,[84] including because the Applicant’s ‘right to reside in Australia’ may be denied. It is further submitted that the ‘punishment already handed down’ by the Court continues in the form of denial of parole, the Applicant’s first wife divorcing him, his girlfriend leaving him, his immigration detention, and the infliction of ‘significant psychological trauma’ on family members. The Tribunal disagrees. The adverse consequences the Applicant refers to arise from his own conduct as a non-citizen who has committed crimes. He has no enduring right to reside in Australia, which turns on his eligibility to be granted a visa. His immigration detention does not constitute a ‘further extension’ of his criminal sentence. The High Court has elaborated on this issue in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [88] (per Gageler and Gordon JJ):
What s 501(3A) does is to require the cancellation of a visa in certain circumstances…That power is administrative in character. It forms no part of the judicial power of the Commonwealth. In particular, the exercise of that power does not trespass on the exclusively judicial function of determining or punishing criminal guilt.
(Footnotes omitted)
[84] ASFIC,11 [23], 12 [24]; Final ASFIC, 5 [8]-[9],
Justice Nettle held at [92]-[94]:
By s 501(3A) of the Migration Act 1958 (Cth), Parliament has conferred on the Minister for Immigration and Border Protection one of a number of powers calculated to give effect to Australia’s sovereign right to determine which non-citizens shall be permitted to remain in this country. Relevantly, the factum of its operation is that the Minister be satisfied that the subject non-citizen does not pass the “character test”…Contrary to the plaintiff’s submissions, however, it does not follow that the provision imposes a punishment. Deportation may be burdensome and severe for a non-citizen, and, in the plaintiff’s case, I have no doubt it will be. But s 501(3A), either alone or by reference to ss 189 and 196, does not increase the punishment for the crime or crimes of which the non-citizen has been convicted or found guilty.
Punishment in the relevant sense consists of the measures taken in the name of society to exact just retribution on those who have offended against the laws of society and thus, it is hoped, to facilitate their rehabilitation.83 By contrast, powers of the kind conferred on the Minister by s 501(3A) give effect to Parliament’s right to rid the nation of persons who, in the judgment of the Parliament, have shown by their offending that their continued presence here would be opposed to the safety and welfare of the nation. Powers of such a kind are measures for the protection of society.
(Footnotes omitted)
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ for revocation, the Tribunal has applied the Direction to the specific circumstances of his case.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds that the primary considerations Strength, nature and duration of ties and Best interests of minor children, coupled with Extent of impediments if removed, and Legal consequences of the decision, outweigh the primary considerations of Protection of the Australian community and Expectations of the Australian community. The Applicant should be in no doubt, however, that any further crimes will likely end his aspiration for a life in Australia.
DECISION
The Tribunal:
(a)Sets aside the decision under review;
(b)Substitutes a decision that there is another reason to revoke the mandatory cancellation of the Applicant’s visa; and
(c)Pursuant to s 43(5B) of the Administrative Appeals Tribunal Act 1975 (Cth), directs that this decision is not to come into operation until 3.00pm (AEST) on 9 May 2023.
I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
…………[sgd[……………………….
Associate
Dated: 8 May 2023
Date of hearing: 2 and 3 May 2023 Advocate for the Applicant: Mr Quan Do Solicitors for the Applicant Endless Immigration Law Advisory Advocate for the Respondent: Ms Emma Letcher-Boldt Solicitors for the Respondent: Clayton Utz Lawyers
0
15
0