Minh Nguyen and Minister for Immigration and Citizenship
[2012] AATA 469
•24 July 2012
[2012] AATA 469
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1877
Re
Minh Nguyen
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 24 July 2012 Place Melbourne The reviewable decision, being the decision of the Minister for Immigration and Citizenship made 1 May 2012 to cancel the Class TY Subclass 444 Special Category (Temporary) Visa issued to Minh Tan Nguyen, is affirmed.
.......[sgd J W Constance]...................
Deputy President J W Constance
CATCHWORDS
CITIZENSHIP AND IMMIGRATION – cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – Direction [no. 41] – Visa refusal and cancellation under s 501 Migration Act 1958 (Cth) – character test – substantial criminal record – primary considerations – the seriousness and nature of the conduct – the risk that the conduct may be repeated – the length of time the applicant was ordinarily resident in Australia prior to engaging in criminal behaviour –the best interests of the child – other considerations – family ties, the nature and extent of any relationships – links to the country to which the applicant would be removed – hardship likely to be suffered by the applicant and his immediate family members – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499(1), 499(2A), 500, 501(2), 501(6)(a) and 501(7)(c)
CASES
Minister for Immigration and Multicultural Affairs v Ali [2002] FCA 1385
Jason Schuster-McFadyn v Minister for Immigration and Citizenship and Administrative Appeals Tribunal [2011] FCA 1303
Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 396; [2011] FCA 194
SECONDARY MATERIALS
Direction [no. 41] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Tribunal Deputy President J W Constance
Date 24 July 2012
A. INTRODUCTION
In 2008 Mr Nguyen entered Australia as the holder of a Class TY Subclass 444 Special Category (Temporary) visa. He has resided in Australia since.
As a result of Mr Nguyen having been convicted of a number of criminal offences, the Minister decided to cancel his visa. Mr Nguyen has applied to the Tribunal to review this decision.
For the reasons which follow the decision of the Minister will be affirmed.
B. FACTUAL BACKGROUND
Unless otherwise stated the facts found in these reasons are based on the evidence of Mr Nguyen.
Mr Nguyen was born in Vietnam in 1968. He married in 1991. He and his wife have two children, a daughter aged 19 and a son aged 16.
In 2002 the family migrated to New Zealand having been sponsored by Mr Nguyen’s brother. In due course each member of the family became a citizen of New Zealand.
On 24 May 2008 Mr Nguyen entered Australia from New Zealand. Since his arrival he has resided here. Mrs Nguyen and the children travelled to Australia on 7 August 2008.[1] All family members have continued to reside in Australia as holders of temporary visas.
[1] Exhibit R6.
On 1 February 2011 in the County Court of Victoria, Mr Nguyen pleaded guilty to the following charges:
oCharge 1 – cultivation of cannabis in a quantity of not less than commercial quantity;
oCharge 2 – theft of electricity;
oCharge 3 –theft of electricity;
oCharge 4 – dealing with property suspected of being the proceeds of crime;
oCharge 5 – making a false statement in connection with an application for a first home owner’s grant;
oCharge 6 – giving false information to a tax official;
oCharge 7 – failing to notify the Commissioner of State Revenue concerning his failure to comply with the residency condition of the first home owner’s grant;
oCharge 8 – failing to repay the first home owner’s grant.[2]
[2] Exhibit R3.
On conviction the following sentences and penalties were imposed:
oCharge 1 – imprisonment for four years;
oCharge 2 – imprisonment for six months;
oCharge 3 – imprisonment for six months;
oCharge 4 – imprisonment for six months;
oCharge 5 – $1000 fine;
oCharge 6 – $2000 fine;
oCharge 7 – $1000 fine;
oCharge 8 – $1000 fine.
The Court ordered that part of the sentences on charges 2-4 inclusive were to be served concurrently with the sentence in respect of charge 1. The effective sentence was four years and six months with a non-parole period of two years and six months. The period during which Mr Nguyen was in custody prior to sentence (377 days) was taken into account as part of the non-parole period. In setting the financial penalties the Court took into account administrative penalties which had already been imposed.[3]
[3] Exhibit R3.
The maximum period of imprisonment which could have been imposed in respect of the first charge was 25 years.
At the time of the hearing of this application Mr Nguyen had just been released from prison and was being held in immigration detention.
The circumstances of the offences of which Mr Nguyen was convicted are set out in the Reasons for Sentence given by Campton J.[4] Based on those Reasons I find that the facts leading up to the convictions are as set out in the following extracts.
[4] Exhibit R3.
Circumstances of offending
The circumstances surrounding your offending are that in August 2009 the Victorian Police commenced an operation code named “Entity”, which operation targeted the cultivation and trafficking of commercial quantities of Cannabis throughout metropolitan Melbourne. It was during this investigation that you came to the attention of police.
Between 28 October 2009 and 4 February 2010 you were involved in cultivating Cannabis at three separate residential properties, namely [addresses deleted – one was a Berwick property registered in the name of Mr Nguyen]. At this time you were the owner of [the Berwick property] but you lived at [address deleted] with your wife.
[Address deleted]
Dealing firstly with the crop at [address deleted], Berwick. On 28 October 2009, after obtaining a covert search warrant, the police attended at the property and observed that Cannabis was being grown hydroponically in several rooms of the house. On that visit 96 plants were located.
On 15 December 2009, pursuant to a second covert search warrant, the police attended at the Berwick address again. On that occasion observations were made that five rooms contained Cannabis plants which had been grown hydroponically. The plants were counted and there were a total of 157 plants.
On a third occasion, 13 January 2010, the police again attended the premises and on that occasion 86 plants were counted.
On a final search on 4 February 2010 at that property, police located and seized 112 Cannabis plants. These plants weighed 78.87 kilograms. The plants varied in size. The windows of the house had been covered with plastic and a search of the house revealed that the electricity meter had been bypassed resulting in a theft of electricity, which theft relates to Charge 2 on the indictment.
[Address deleted] Endeavour Hills
Moving on to [address deleted], Endeavour Hills. On 5 November 2009 the police executed a covert search warrant at that property and 129 cannabis plants were counted. On 4 February 2010 they again searched the property and located 82 Cannabis plants weighing 56.16 kilograms. Once again these plants had been grown hydroponically. The plants varied in size. The windows of the house were covered with plastic and a search of the house revealed that the electricity meters had been bypassed, which theft of electricity relates to Count 3 on the indictment.
[Address deleted], [Berwick #2]
With respect to [Berwick #2]; on 4 February 2010 the police executed a search warrant. At the time of entry there was no-one present and the police located and seized 112 Cannabis plants which had been grown hydroponically in four rooms of the house. The weight of the Cannabis in relation to that property was 14.56 kilograms.
Deal with property suspected of being proceeds of crime
The circumstances surrounding the offence of deal with property suspected of being the proceeds of crime are that, on 4 February 2010, the police executed a search warrant at [Mr Nguyen’s home address] where you were residing with your wife. During the search of the premises they located cash to the value of $36,750. This money was located in various places including the base of a wardrobe, the pocket of a jacket in the wardrobe, the top drawer of a chest in the bedroom, and the third drawer of a television cabinet.
Make false declaration
The circumstances surrounding summary charge 9 of make false declaration in connection with the first home owner’s grant are that, on 5 June 2009, you contracted to purchase [the Berwick #2 property], for the price of $355,000. On 7 June you signed an application for a first home owner’s grant. In this application you stated that this would be the first time you had received a grant under the First Home Owner Grant Act; further, that you would be occupying the house as your principle place of residence for a continuous period of at least six months, commencing within 12 months of completion of the transaction to buy the property, and that you did not have a spouse or partner. All these declarations were false. In fact on 21 May 2009 your wife, Lee Thai Nguyen, was paid a first home owner grant in the sum of $17,000 in relation to the purchase by her of the house in which you were both living, [address deleted].
Making false statement in writing
With respect to summary charge 10 concerning make false statement in writing, on 28 June 2009, you signed the Principal Place of Residence Statutory Declaration. In that document you declared that you intended to occupy [the Berwick #2 property], as your principal place of residence. However, you did not reside at that property at any time after settlement of the purchase, nor did you intend to do so when you signed the statutory declaration.
Failure to give written notice of non-compliance
On 16 July 2009, the 17,000 first home owner grant was paid to you. Your failure to notify the Commissioner of State Revenue that you were not occupying the residence and your failure to repay the $17,000 grant constitutes summary charge 14.
I have been informed that pursuant to a notice dated 31 January 2011, issued under the First Home Owner Grant Act, you have been required to repay the amount of the grant in the sum of $17,000 and that this amount remains unpaid. Further, that pursuant to a notice of the same date you have been required to pay a penalty for your dishonesty in the sum of $17,000, which sum also remains unpaid.
C. THE RELEVANT LEGISLATION
Subsection 501(2) of the Migration Act 1958 (Cth) provides:
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test: and
(b)the person does not satisfy the Minister that the person passes the character test.
Subsection 501(6) paragraph (a) provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));
Subsection 501(7) paragraph (c) provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more;
The power of the Tribunal to review the decision to cancel Mr Nguyen's visa is provided by Section 500.
Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the Minister’s decision. These directions are contained in Direction [no. 41] which commenced on 15 June 2009. Subsection 499(2A) provides that these directions must be complied with.
D. THE CHARACTER TEST
Mr Nguyen concedes that he does not pass the character test as he has a substantial criminal record in accordance with subsection 501(7).
E. DIRECTION [NO. 41]
In Part B of Direction [no. 41] the Minister has set out considerations to be taken into account when a decision-maker (in this case the Tribunal) is not satisfied that a person passes the character test and therefore has to decide how to exercise the discretion to either cancel or refuse to cancel, a visa.
The Minister has determined two types of considerations:
(a)primary considerations, which must be considered;[5]
(b)other considerations, which may be relevant and, if so, must be considered.[6]
The various considerations are set out in the Direction; I shall refer to the particular considerations relevant to this application later in these reasons. Generally, the other considerations should be given less weight than that given to the primary considerations.[7]
[5] Direction [no. 41] para.10.
[6] Direction [no. 41] para.11.
[7] Direction [no. 41] subpara.11(2).
F. THE PRIMARY CONSIDERATIONS
Primary consideration 1: the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence – paragraph 10(1)(a)
Included in the factors relevant to assessing the level of risk of harm to the community is the seriousness and nature of the relevant conduct and the risk the conduct may be repeated.[8]
[8] Direction [no. 41] para.10.1.
The seriousness and nature of the conduct – paragraph 10.1.1
In accordance with paragraph 10.1.1(2)(f) the production of a commercial quantity of an illicit drug is considered serious. There is no reason why I should find otherwise in this application. The volume of cannabis seized was seven times the minimum commercial quantity[9] and was grown in three separate premises, each dedicated to the enterprise. In addition Mr Nguyen unlawfully obtained $17,000 of public money to assist in establishing the Berwick property and stole the electricity used in growing two of the three crops. All of the offending conduct formed part of an elaborate scheme to make money unlawfully and involved a number of people. Mr Nguyen was found by the Court to be “ranked in about the middle” of the people involved and was not the architect of the scheme. I am satisfied that Mr Nguyen played a significant role.
[9] Exhibit R3 para.36.
When he gave evidence, Mr Nguyen emphasised that his role was that of a minor player who did as he was told by others. He said that a short time before June 2009, whilst he was having lunch at Springvale Markets, by chance he started talking to another Vietnamese man by the name of Mr Dat. Following this meeting he met Mr Dat on a number of occasions and Mr Dat offered him a job “like farming, but indoors, and it would be growing plants which were like cigarettes.”[10] According to Mr Nguyen, within about a month of their first becoming acquainted, Mr Dat gave him approximately $50,000 to purchase in his own name one of the properties in which the cannabis was later cultivated.
[10] Exhibit A2 para.9.
Mr Nguyen also said that he had limited understanding of the documents he signed in relation to the application for the First Home Owners Grant, the mortgage to raise the balance of the purchase price and the transfer of the property to his name. He gave evidence that, at the direction of Mr Dat, he attended an office in Springvale where he signed the necessary documents. He did not recall the address of this office. In cross‑examination Mr Nguyen agreed that the person who witnessed his signature on the documents relating to his purchase of the Berwick property was the same person who witnessed the documents in relation to his wife’s purchase of the property in which the family resided. He described this as a “coincidence.”
Further Mr Nguyen gave evidence that it was only when he attended the Berwick property for the first time (after he became its owner) that he became aware that all the windows were covered and that the activity being carried on was not the production of tobacco and was probably illegal. He said that he planned to cultivate only two crops and then find alternative, legitimate, employment.
In relation to the charge involving the sum of $37,750 to which Mr Nguyen pleaded guilty, he gave evidence that this sum was in fact part of the proceeds of the sale of the family home in New Zealand. He said that he pleaded guilty to the charge of dealing with property suspected of being the proceeds of crime to avoid his wife being involved in any court proceedings. The sum was forfeited along with the home purchased by Mrs Nguyen. Both Mr Nguyen and Mrs Nguyen gave evidence that the home was purchased by Mrs Nguyen using the proceeds of the sale of their property in New Zealand.
Mr Nguyen said that he told his legal representatives in the County Court proceedings of the true nature of his role and the source of the confiscated funds, but that this information was not conveyed to the Court.
I am not satisfied that Mr Nguyen was a reliable witness when he gave evidence before me. It is unlikely that within about one month of a first chance meeting, a previously unknown person would have invited Mr Nguyen to join an illegal operation such as described and give him $50,000 to purchase a residential property in his own name. I do not accept Mr Nguyen’s evidence that he did not recognise the illegality of the operation in which he became involved until he first visited the property he had purchased. Further I found his explanation of why he pleaded guilty to the charge related to the proceeds of crime unconvincing.
It is to be noted that even had I found Mr Nguyen’s explanation of the circumstances of his offending persuasive, this Tribunal is required to accept the facts upon which the County Court accepted Mr Nguyen’s plea of guilty and convicted him of the charges against him.[11]
[11] Minister for Immigration and Multicultural Affairs v Ali [2002] FCA 1385.
Direction [no. 41] para.10.1.1 provides that the sentence imposed is considered indicative of the seriousness of the offender’s conduct to the community.[12] The maximum sentence for the most serious offence of which Mr Nguyen was convicted is 25 years. As the sentence imposed was for four years (i.e. less than 20% of the maximum) this is a factor to be considered in Mr Nguyen’s favour.
[12] Direction [no. 41] Para.10.1.1.
The risk that the conduct may be repeated – paragraph 10.1.2
Mr Nguyen says that he has learned how serious the consequences of offending are and that he will not risk further harm to his family by re-offending and serving another term of imprisonment.
A report from Mr Nguyen’s Correctional Officer/ Case Worker states, in part:
He has completed the required programs to address his offending behaviour and has been assessed as low risk of re offending.[13]
There is no detailed report to support this statement and Mr Burgess was not called to give evidence.
I have taken into account the evidence of Mr Fitzpatrick, Mr Nguyen’s Prison Chaplain, that in his opinion Mr Nguyen is unlikely to re-offend. I have considered also various written references to the same effect.
[13] Exhibit A13.
It was argued on behalf of Mr Nguyen that a further and important reason why it is unlikely the conduct would be repeated is that one of the causes for his offending was no longer operative. Mr Nguyen gave evidence that his brother, who had sponsored him and his family to migrate to New Zealand, had a very serious gambling problem. Mr Nguyen said that he had observed people coming to his brother’s home demanding payment of gambling debts. Mr Nguyen felt an obligation to assist his brother and saw the cannabis growing activity as a means of earning the income to do so. He said that he has not made any payments to his brother to assist him as he was arrested before he had earned sufficient income to enable him to do this.
In the Reasons for Sentence, Campton J. noted that Mr Nguyen’s Counsel submitted that his reason for offending was “partly due to difficulties in obtaining employment and to personal debts, including gambling debts... .”[14] Her Honour also referred to a reference from Mr Nguyen’s brother which stated that Mr Nguyen had sent money to him to pay his gambling debts.[15] There is no indication in Her Honour’s reasons to suggest that Mr Nguyen disputed the statement made by his brother.
[14] Exhibit R3 para.20.
[15] Exhibit R3 para.26.
It was put on behalf of Mr Nguyen that he no longer felt obliged to assist his brother and that he would consider his family first. However, if Mr Nguyen’s brother is a heavy gambler as Mr Nguyen says he is, one of the circumstances said to have contributed to Mr Nguyen’s offending remains. This does not cause me to decide that the assessment of the risk of Mr Nguyen’s re-offending should be changed.
The changes in Mr Nguyen’s evidence as to the circumstances of his offending do not assist him in my assessment of the risk of his re-offending. His lack of candour in relation to the circumstances of his offending, whether it be before the County Court or this Tribunal, suggests that Mr Nguyen does not recognise fully the seriousness of his conduct and therefore is more likely to re-offend if the opportunity presented itself.
I have taken into account that whilst in prison Mr Nguyen took the opportunity to take part in as many courses as were available to assist in his rehabilitation. Unfortunately the time spent by Mr Nguyen in attending such courses appears to have been limited to no more than 16 hours. The course designed specifically to assist in relapse prevention was for four hours.[16]
Primary consideration 2: whether Mr Nguyen was a minor when he began living in Australia – paragraph 10(1)(b)
[16] Exhibit A14.
When Mr Nguyen began living in Australia he was not a minor; he was 30 years old. As an adult he entered Australia with the “knowledge duties and responsibilities of an adult in the position of the visa holder …” [17]As Mr Nguyen has failed to meet his duties and responsibilities as a resident of this country, this factor is to be considered as a factor suggesting that cancellation of Mr Nguyen's visa is preferable.
Primary consideration 3: the length of time that Mr Nguyen was ordinarily resident in Australia prior to engaging in criminal behaviour – paragraph 10(1)(c)
[17] Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 396 at para.21; [2011] FCA 194 at para.21.
Mr Nguyen resided in Australia for approximately 12 months before he engaged in the criminal behaviour which led to his imprisonment. This is a very short period and is a reason to consider that his visa should be cancelled.
Primary consideration 4: relevant international obligations, including but not limited to … the best interests of the child, as described in the Convention on the Rights of the Child – paragraph 10(1)(d)
The best interests of Mr Nguyen’s 16 year old son, BN, must be considered. He gave evidence.
BN is in Year 11 at a Victorian College and hopes to study aerospace engineering at a Victorian university. He would like to continue to reside in Australia with his father, mother and sister. However he said that if his mother was to return to New Zealand with his father he would accompany her.
BN lived with his family in New Zealand from 2002 until August 2008. He was educated in New Zealand up to Year 8 Middle School. He had friends in New Zealand, but has lost contact with them since moving to Australia.
BN was 12 years old when he entered Australia with his mother and sister. He has continued his schooling in Australia and has made friends at school and at the church he attends with his mother and sister. He is concerned that, if he has to return to New Zealand he will need to make new friends and his education will be affected. He did not know if a tertiary course in aerospace engineering would be available to him in New Zealand.
BN said that his father is his role model, provides him emotional support and encourages him in his education. He said that although his father has been convicted of several offences, his father has always encouraged him to act properly and lawfully.
I am satisfied that BN is close to his father and that it is in his best interests that he continue in as close a relationship as possible with both parents. I am satisfied also that if BN was to move to New Zealand with his parents he would need to establish himself in a new school and in a new group of friends. However BN has already adjusted to two major moves from one country to another and that he has clear recollections of life in New Zealand. I am satisfied that he could manage a move back to New Zealand without undue disruption. It is likely that he would be able to pursue the remainder of his education (including his preferred tertiary education) in New Zealand. On the basis of the evidence of Mrs Nguyen I am satisfied that if she was prepared to do so Mrs Nguyen could remain in Australia until the end of the 2013 school year if it was considered necessary for BN to complete his secondary education in Australia.
Whilst it would be less disruptive for BN to remain in Australia as he wishes to do, I am satisfied that his returning to New Zealand would not have any long term effect upon him. He would be returning to a country with which he is familiar and to a culture similar to that in which he has lived for the past four years.
I am satisfied that BN’s interests are a factor to be considered in favour of Mr Nguyen’s remaining in Australia but that it is not a factor to be given significant weight.
G. OTHER CONSIDERATIONS
The other considerations, where relevant, must be taken into account. Generally they should be given less weight than that given to the primary considerations.[18] A non‑exclusive list of other considerations is set out in paragraph 11(3) of the Direction. Those considerations relevant to this application are considered in the following paragraphs.
[18] Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 393 at para.8; [2011] FCA 194 at para.8.
Family ties, the nature and extent of relationships
Mr Nguyen’s family in Australia consists of his wife and two children.
Mrs Nguyen gave evidence that she continues to support her husband and they intend to resume their relationship when he is released from detention. She said that should Mr Nguyen be required to return to New Zealand she will accompany him. I accept this evidence.
There is no evidence to suggest that Mrs Nguyen knew that her husband was of character concern before he committed the offences of which he was convicted.
I have already referred to the evidence of Mr Nguyen’s son. I am satisfied that if both Mr Nguyen and Mrs Nguyen return to New Zealand, BN will accompany them.
Mr Nguyen’s daughter, VN, provided a statement [19] and gave evidence.
[19] Exhibit A8.
VN is 19 years old and is a student in the second year of a university course. She lives with her mother and brother. I am satisfied that she is very supportive of her father and has kept in close contact with him, I accept her evidence that if her parents return to New Zealand she will remain in Australia
Although Mr Nguyen has close family ties in Australia, two of his family members are likely to accompany him should he be required to return to New Zealand. Although his deportation may separate him from his daughter, taking into account her age and that she has been separated from him for the past 2½ years (by reason of his detention and imprisonment), the consideration of Mr Nguyen’s family ties does not weigh heavily in his favour.
Links to New Zealand
On the evidence before me I am satisfied that Mr Nguyen will have the support of his wife and son should he return to New Zealand. He has his brother still living in New Zealand, although this is not a relationship which is likely to provide him any support.
By reason of his having lived in New Zealand from 2002 until 2008 I am satisfied that he will be able to re-establish himself in New Zealand. I have no evidence to suggest that Mr Nguyen will suffer particular difficulty in doing this.
Hardship likely to be experienced by Mr Nguyen and his immediate family members
I am satisfied that Mr Nguyen is unlikely to experience significant hardship if he is required to return to New Zealand. He will need to find accommodation and employment, but I am not satisfied that it will be any more difficult for him to find work in New Zealand than it would be for him to find work in Australia. He will have the benefit of his wife and son accompanying him.
Evidence of Mrs Nguyen
On the basis of Mrs Nguyen’s evidence I am satisfied that ever since Mr Nguyen was taken into custody she has supported herself and her children with assistance from her daughter. Mrs Nguyen is employed as a factory worker.
If Mrs Nguyen does decide to accompany her husband back to New Zealand she will suffer the hardship of having to find alternative accommodation, having to find alternative employment and re-establishing a social network. In addition she will be separated from her daughter who presently lives with her. If she decides to remain in Australia she will suffer the hardship of separation from her husband.
Evidence of VN, Mr Nguyen’s daughter
VN is living with her mother and brother. She has two part-time jobs and has assisted her mother to support the family during her father’s detention.
VN said that if her parents and brother return to New Zealand she will remain in Australia and complete her tertiary study here. She will miss her family should this happen.
H. ASSESSING THE VARIOUS CONSIDERATIONS
The Tribunal must assess the weight to be given to all the relevant considerations, both primary and other. It has been given a general discretion to decide whether Mr Nguyen’s visa should be cancelled. This requires the Tribunal to make the preferable decision. The primary considerations are to be taken into account; the other considerations “where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations...” [20] This means that in appropriate situations the other considerations may out-weigh the primary considerations.[21]
[20] Direction [no. 41] subpara.11(2).
[21] Jason Schuster-McFadyn v Minister for Immigration and Citizenship and Administrative Appeals Tribunal [2011] FCA 1303.
In this case the consideration of the protection of the Australian community weighs heavily in favour of the cancellation of Mr Nguyen’s visa. The conduct was serious and involved Mr Nguyen working with others to undertake a substantial drug operation and to obtain public money fraudulently. I have found that there is a risk that he may re‑offend. Any further offending of the nature of his past offences could place the health and well-being of members of the Australian community at risk.
Further, Mr Nguyen offended within a short time of his entry into Australia and was an adult when he did so. He does not have substantial ties with Australia and should he return to New Zealand his wife and son will return with him.
The primary consideration which weighs against the visa cancellation is the effect it would have on Mr Nguyen’s son, BN. I have found that if Mr Nguyen has to return to New Zealand, Mrs Nguyen and their son will return with him. This will cause some disruption in BN’s education and will separate him from his sister and friends. Other considerations, in particular the effect on Mrs Nguyen and their daughter, also weigh against cancellation.
Having considered all of the facts I conclude that the preferable decision is that Mr Nguyen’s visa should be cancelled. The considerations relating to the effect on Mr Nguyen and his family do not outweigh the need to protect the Australian community. I have reached this conclusion as I do not consider that the requirement that Mr Nguyen re-establish himself in New Zealand with two of his immediate family will occasion an unacceptable degree of hardship to them. New Zealand is a country which is familiar to them and has a culture similar to that in Australia.
I. CONCLUSION
The reviewable decision, being the decision of the Minister for Immigration and Citizenship made 1 May 2012 to cancel the Class TY Subclass 444 Special Category (Temporary) Visa issued to Minh Tan Nguyen, will be affirmed.
I certify that the preceding 68 (sixty eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
...[sgd]..................................................
Associate
Dated 24 July 2012
Dates of hearing 5 and 10 July 2012 Counsel for the Applicant Ms P Murphy Advocate for the Applicant Mr S Peterson Solicitors for the Applicant Victoria Legal Aid Advocate for the Respondent Mr D Brown Solicitors for the Respondent Australian Government Solicitor
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