MKKR and Minister for Immigration and Border Protection (Migration) - [2016] AATA 458

MKKR and Minister for Immigration and Border Protection (Migration) [2016] AATA 458 (30 June 2016)

Division:  GENERAL DIVISION
File Number:  2016/1916
Re:  MKKR
APPLICANT

And:MINISTER FOR IMMIGRATION AND BORDER PROTECTION
RESPONDENT

DECISION
Tribunal  Deputy President S A Forgie
Date  30 June 2016
Place  Melbourne

The Tribunal decides to:
affirm the decision of a the respondent dated 8 April 2016 refusing the applicant a Bridging E (Class WE) visa (Bridging visa) under s 501 of the Migration Act 1958.
[sgd]

S A Forgie
Deputy President

CATCHWORDS
IMMIGRATION – failure to pass character test – whether discretionary power to refuse grant of visa should be exercised – decision affirmed
PRACTICE AND PROCEDURE – opinion evidence – facts on which an expert bases an opinion and upon which that opinion depends must be agreed or proven – opinion not relevant evidence to extent to which facts not agreed are not ultimately found by Tribunal
LEGISLATION
Administrative Appeals Tribunal Act 1975; s 33(1)(c)
Births, Deaths and Marriages Registration Act 1996 (Vic); ss 4(1), 30A(1)
Evidence Act 1995; Part 3.3, ss 76(1), 78, 79(1)
Migration Act 1958; ss 5(1), 29, 31(1), 31(3), 32-38, 36, 499, 500(6A)-500(6L), 501, 501(1), 501(6), 501(7), 501(12), 501F(2), 501G
Migration Regulations 1994

CASES
Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313; 97 ALR 555
Australian Securities and Investments Commission v Rich [2005] NSWSC 149; (2005) 190 FLR 242
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588; 277 ALR 611
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577; 46 FLR 409
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; 31 ALR 666; 44 FLR 41
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349
Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85
Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537

OTHER MATERIAL

Direction No. 65; Part B
AAT Guideline: Persons Giving Expert and Opinion Evidence; cll 4.1(b) and (c)
Federal Court Practice Note CM7: Expert witnesses in proceedings in the Federal Court of Australia; cll 2.1(e) and (f)

REASONS FOR DECISION

MKKR,[1] who is a Vietnamese citizen, came to Australia on 5 February 2013 as the holder of a Student (Temporary) (Class TU) visa (student visa). She was arrested in February 2014 on charges of Cultivate Narcotic Plant Commercial Quantity (Cultivation) and to another charge of theft (Theft). On 12 December 2014, she was convicted of each of those charges and sentenced to a term of imprisonment totalling three years and two months with a non-parole period of one year and ten months. MKKR served that term at the Dame Phyllis Frost Centre and was due to be released on parole in December 2015. She was ultimately released on 8 February 2016 but immediately taken into immigration detention at the Maribyrnong Immigration Detention Centre (Maribyrnong).
[1] At the request of the applicant in these proceedings and with the consent of the Minister, I made an order under s 35 of the Administrative Appeals Tribunal Act 1975 that the applicant’s name and that of her current partner together with material tending to identify them be restricted to the parties and the legal representatives and to members and staff of the Tribunal and staff of DTI, the recording and transcription providers. The applicant is referred to as “MKKR” in these reasons while her co-offender and ex-partner is referred to as “Mr CO” and her current partner as “Mr P”.

On 7 December 2015, MKKR applied for a combined Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa (Partner visas). She followed her application with a further application lodged on 16 February 2016 for a Bridging E (Class WE) visa (Bridging visa). A delegate of the Minister for Immigration and Border Protection (Minister) refused her application for a Bridging visa in a decision dated 6 April 2016 after finding that her term of imprisonment meant that she did not pass the character test under s 501(6) of the Migration Act 1958 (Migration Act). The decision whether to refuse a Bridging visa is a discretionary decision and the delegate exercised that discretion on 6 April 2016 to refuse MKKR’s application for a Bridging visa. By virtue of the operation of s 501F(2), the delegate’s refusal meant that MKKR’s applications for Partner visas were also refused. MKKR was advised of the delegate’s decision by letter dated 8 April 2016. That letter was delivered to her on 8 April 2016 and she lodged an application for review of it in the Tribunal on 12 April 2016. I have decided to affirm the decision of a delegate of the Minister dated 8 April 2016 refusing her a Bridging E (Class WE) visa (Bridging visa).

BACKGROUND

On the basis of the evidence, I make the following findings of fact on matters that were not in issue between the parties. MKKR was born in 1989 in a rural Province in Vietnam. She is the eldest of five children. Her sister and three brothers live in Vietnam as do her parents, uncles, aunts, cousins, nieces and nephews.[2] MKKR completed a Pharmacy Degree at an educational institution located a few hundred kilometres from her family’s home. MKKR has no criminal record in Vietnam.[3] MKKR was enrolled at Deakin University to undertake a Degree in Health Sciences.
[2] G documents; G13 at 77
[3] G documents; G10 at 44

SENTENCING REMARKS

After being committed for trial, MKKR pleaded guilty to the two charges before Judge Mullaly of the County Court of Victoria. His Honour had, on 23 October 2014, sentenced her former partner and co-offender, Mr CO, for the same offences as those for which he was sentencing MKKR. He sentenced Mr CO to a total term of imprisonment of three years and three months on the cultivation charge and three months on the charge of theft of electricity. One month of the latter sentence was cumulative on the first. That meant that Mr CO was sentenced to a total term of imprisonment of three years and four months with a minimum non-parole period of two years.[4] As Mr CO and MKKR were co-accused, in sentencing MKKR he relied upon his sentencing remarks in relation to Mr CO as if both he and she were in the dock together. He sentenced MKKR on 12 December 2014.
[4] G documents; G11 at 53

MKKR and Mr CO, Judge Mullaly found, had known each other in Vietnam but Mr CO had come to Australia at an earlier time. In February 2014, the police raided a unit in suburban Melbourne and discovered that it had been converted from a residence to a cannabis production house. MKKR and Mr CO were located in a car parked nearby and arrested. Together they had regularly visited and stayed at the unit. MKKR picked all or much of the equipment used to establish the hydroponic cultivation system in the unit as well as other equipment. That other equipment included filters and timers, transformers and reflectors to enable the plants to be grown indoors without natural light. The system, which was spread across five rooms in the unit, was powered by electricity obtained by bypassing the meter. In all, there were 342 plants and they were grouped in the rooms according to their growth. This enabled the plants to be harvested regularly as each group came to maturity at a different time. That meant that the cashflow would be regular as well. At the time of the arrest of MKKR and Mr CO, the plants weighed a total of 87.62 kilograms. The electricity stolen by bypassing the meter was estimated to be valued at $18,814.94.

Judge Mullaly described how MKKR came to commit the crimes:
“You had arrived in Australia in February 2013. You knew your co-accused from Vietnam. He had been in this country for longer. You had intended to study in Australia, though you had little English. You also wanted to send money to your family in Vietnam who were struggling with difficulties at the time on their farm. You say your boyfriend encouraged you to be involved in the cannabis cultivation and, naively, you agreed.”[5]

He went on to note that MKKR had been unable to attend all of her classes because of the need to survive in Melbourne and to assist her family in Vietnam. Judge Mullaly noted that her family’s capacity to help her fell away shortly after she arrived.[6]

[5] G documents; G14 at 79; [5]

[6] G documents; G14 at 81; [15]

MKKR admitted that she and Mr CO had received a sum of $60,000 for the period between November 2013 and February 2014.[7] Each of them bought a car, MKKR sent money to her family in Vietnam and both used the money for day to day expenses. Judge Mullaly found that MKKR was not the main organiser, not a “profit maker”[8] and her involvement was “well less than the main organisers”.[9] At the same time, he found, she was “an active important cultivator and more than a mere crop sitter”[10] but her role was at “the lower end of the scale”.[11] She was “slightly less culpable in the sense that … [her] boyfriend got … [her] involved”.[12] Judge Mullaly noted that MKKR had suffered a miscarriage in April 2014 while in prison.
[7] G documents; G14 at 80-81; [13]
[8] G documents; G14 at 81: [20]
[9] G documents; G14 at 81: [14]
[10] G documents; G14 at 81: [14]
[11] G documents; G14 at 81: [20]
[12] G documents; G14 at 82; [24]

Judge Mullaly balanced the relevant considerations. In addition to MKKR’s personal circumstances and issues of parity between her and Mr CO, Judge Mullaly said:
“Taking into account and giving effect to the primary sentencing considerations of denunciation and deterrence, while not ignoring your ultimate rehabilitation which will occur, no doubt, in Vietnam, and also having regard to all other relevant matters, including current sentencing practices, there is no other appropriate disposition other than a term of imprisonment. Your counsel, sensibly, conceded as much. I do not lose sight of the fact that to sentence someone like you to imprisonment is a grave step, but there is no other course.
I take into account that your time in prison will be more burdensome because you do not speak English. You are doing all that you can to learn English in the prison and undertake some further training with the use of computers.”[13]
[13] G documents; G14 at 82: [22]-[23]

LEGISLATIVE FRAMEWORK

Under the Act, the Minister may grant permission (known as a visa) to a non-citizen to travel to and enter Australia, to remain in Australia or to do both.[14] There are classes of visas.[15] Some are specified in the Act itself[16] and some are prescribed in the Migration Regulations 1994 (Regulations).[17] The Regulations may prescribe criteria that must be met for a visa or visas of a specified class.[18]
[14] Migration Act; ss 5(1) and 29
[15] Migration Act; s 31(1)
[16] Migration Act; ss 32-38
[17] Migration Act; s 31(3)
[18] Migration Act; s 31(3)

The Minister is given power to cancel a visa. Among those powers is that given by s 501(1) of the Migration Act to:
“… refuse to grant a visa if the person fails to satisfy the Minister that the person passes the character test.”

The “character test” is set out in s 501(6), which, in so far as it is relevant, provides that:
“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)); or
(aa)…
(ab)…
(b)…
(c)having regard to either or both of the following:
(i)the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)-(v)…
Otherwise, the person passes the character test.”

A “substantial criminal record” is defined in s 501(7) to mean, in part, that:
“…a person has a substantial criminal record if:
(a)-(b)…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)-(e)…”

The term “imprisonment includes any form of punitive detention in a facility or institution” and “sentence includes any form of determination of the punishment for an offence”.[19] MKKR does not pass the character test for the term of imprisonment imposed on her was longer than 12 months. That is so even though the term of imprisonment was wholly suspended.
[19] Migration Act; s 501(12)

Section 501G of the Migration Act sets out the steps that the Minister must take in giving notice of a decision under, among others, s 501. Sections 500(6A) to 500(6L) make particular provision for those situations in which the Minister’s decision relates to a person, such as MKKR, who is in the migration zone. In broad terms, the “migration zone” includes mainland Australia.[20] Those provisions make particular provision regarding the time within which documents must be lodged with the Tribunal and the time within which the Tribunal must make its decision. I will return to them below.
[20] Migration Act; s 5(1)

DIRECTION No. 65

Section 499 of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under that legislation. The directions must be about the performance of those functions or the exercise of those powers and must not be inconsistent with the Act or regulations. Direction No. 65 has been made in the exercise of those powers. It begins with a statement to the effect that it is setting out the framework within which decision-makers should approach their task under s 501 i.e. the task of deciding whether or not to exercise the discretion under s 501 to cancel a non-citizen’s visa or to refuse to grant a visa to a non-citizen. Part B of Direction No. 65 identifies the considerations relevant to visa applicants in determining whether to exercise the discretion to refuse a non-citizen’s visa application.
“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[21]
[21] Direction No. 65; [6.1(1)]

The objectives are followed by passages described as “General Guidance” in [6.2] and “Principles” in [6.3]. They begin with a general statement 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. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”[22]
[22] Direction No. 65; [6.2(1)]

The Principles set the framework within which the individual considerations set out in Parts A, B and C of Direction No. 65 are set. They give those considerations their form and pattern and raison d’être. The Principles set out in paragraph 6.3 are:
“(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non‑citizen’s visa should be cancelled, or their visa application refused.”

In so far as it relates to a decision to refuse to grant a visa, paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b)…”

Parts A and B both require decision-makers to take into account the primary and other considerations relevant to the individual case.[23] The considerations differ according to whether the decision under consideration is, among others, to cancel a visa or to refuse to grant a visa. The Direction explains that:
“… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”[24]
[23] Direction No. 65; [8(1)]
[24] Direction No. 65; [8(1)]

In applying Part B, paragraph 8 of Direction No. 65 sets out how the considerations are to be applied by a decision-maker. In applying them, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[25] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … cancellation of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[26] I will expand upon the primary and other considerations in the course of considering the evidence in light of each of them.
[25] Direction No. 65; [8(2)]
[26] Direction No. 65; [8(4) and (5)]

THE CONVICTIONS AND SENTENCES

On the basis of the Record of Orders Made in the Criminal Jurisdiction in the County Court of Victoria, I find that MKKR pleaded guilty to a charge of Cultivation and to another charge of Theft. Judge Mullaly convicted MKKR on both charges. On the charge of Cultivation, he sentenced her to 38 months’ imprisonment and on the charge of Theft, to three months’ imprisonment. As the sentences were to be served concurrently, the total effective term of imprisonment was a period of three years and two months. His Honour directed that the minimum terms MKKR was required to serve before she would be eligible for parole was a period of one year and ten months. In addition to the terms of imprisonment, Judge Mullaly ordered that MKKR pay Origin Energy Limited the sum of $18,814.94 as compensation for electricity she had stolen and that she forfeit 342 cannabis plants.[27]
[27] G documents; G7 at 33-34

CONSIDERATION
Primary considerations

Part B begins with three considerations that are characterised as primary considerations: protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in the remainder of paragraph 11.

A. Protection of the Australian community

The first primary consideration relating to the protection of the Australian community begins with the general statement:
“When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”[28]
[28] Direction No. 65; [11.1(1)]

A.1 The nature and seriousness of MKKR’s conduct to date

Paragraph 11.1.1 goes on to expand on the nature and seriousness of the non-citizen’s offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
“a) …;
b)…;
c)…
d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g)The cumulative effect of repeated offending;
h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i)…”

A.1.1 The evidence

A.1.1.1 MKKR’s statement

MKKR has been convicted of two charges arising out of a single set of events. I have set out the findings made by Judge Mullaly in [4]-[8] above. In her statement, MKKR explained how she came to commit the offences. When she first came to Australia, she said, she enrolled in, and successfully completed a six month English course at Deakin University. The money to fund her studies had been lent to the family by MKKR’s mother’s brother and his wife. They lent the equivalent of $AUD25,000. Approximately $AUD17,000 of that sum was to used pay tuition and visa fees. The remaining sum of $7,000 was paid to the agent who arranged the visa, MKKR said. Her parents were to repay the loan by monthly repayments of approximately $AUD350 from earnings from the family farm.

MKKR’s aunt lived in Vietnam near her parents but her uncle, MKKR said, came to Australia in 2009 and lived in Melbourne on his own. He is not an Australian citizen. When she arrived in Australia, she went to live with him. Also living in Melbourne was Mr CO, who was the same age as she and whom she had known in Vietnam at the school and in the village where she had grown up. He had been living in New Zealand as a student and had then moved to Australia on a tourist visa. She said that Mr CO and she started a relationship soon after she arrived but it was not a healthy relationship. He was physically and emotionally abusive to her and, in September 2013, insisted that she terminate the pregnancy.

In approximately September 2013, there were major floods in the region of Vietnam where her parents lived. The floods decimated the family’s crops and animals. As a result, the family lost all of their income. That meant that MKKR’s parents could not make the monthly repayments to her uncle and aunt. Her family told her on the phone that her aunt would go very often to her parents’ home to get the repayment. After several visits she brought another person with her and, later, yet another person. Her aunt became more threatening and abusive with each visit, MKKR said, and then her aunt hit her mother.

MKKR said that she and her family were very worried. They did not know what would happen to her family in Vietnam and told her that she had to find a way to make the repayments. MKKR said that was working on a farm and in a restaurant at the time but that only brought her enough money to pay her living expenses. In view of the work restrictions on her student visa, she could not undertake any more hours of remunerative work. MKKR then said in her statement:
“19. It was at this time that my uncle said to me that I could repay the debt by helping him with a cannabis crop. I did not know what this involved or meant. … [Mr CO] worked for my uncle already. He explained what it involved and also encouraged me to do it.
20.I decided to help him solely because I was worried about my family, the threats against them by my aunt and because … [Mr CO] and my uncle told me that assisting would be OK.
21.I crop sat for a few days every week from then until February 2014. I was two days away from paying off my debt to my uncle when I was arrested.”

A.1.1.2 MKKR’s oral evidence

In cross-examination, MKKR agreed that she had told the police when she was arrested that she had had no involvement in the cultivation of cannabis. At that time, she said, she was scared and her uncle and her then partner, Mr CO, had told her she was only helping; she was not involved. She agreed that what she told the police was not true. What she told them was not true but her partner had told her not to say anything; that she had no involvement. When he asked for help, she helped him, she said. He did other things. She said that she had no involvement because she was very scared; very frightened. Once she was in custody, she felt remorse and pleaded guilty. MKKR agreed with Ms Grinberg that she had pleaded guilty after a committal hearing.

In re-examination, MKKR said that her ex-partner had treated her very badly and had tied her up on one occasion with an electrical cord. He was also verbally abusive towards her on a regular basis. She became very upset when talking about his treatment of her. MKKR agreed with Mr Albert’s proposition that Mr CO’s history of abusing her had an impact on her decision to do as he told her.

MKKR gave further details about the work she undertook in Australia within the limits imposed by her student visa. Some of that work was at a farm where she performed tasks such as picking apples. Pay was at the rate of $14 per hour and she would be asked to work at the farm every second week or so. MKKR said that she also worked at a restaurant for three or four hours, and sometimes up to five hours, on each of three nights each week. That was paid at an hourly rate of $9 per hour. She was paid in cash.

After the flood, MKKR said, she tried to get more hours at the restaurant to repay the debt but she said that they would only pay her for the hours that she was permitted to work under her student visa. The money she was paid was only enough to cover her expenses. As she only spoke Vietnamese, she felt that she could not approach other restaurants for work.

MKKR said that she had not told the psychologists about her uncle because she was very afraid of him. Then her solicitor told her last week that she had to say everything. Her uncle is the person who has had a very bad influence on her but, when her solicitor told her to say everything, she did. When Ms Grinberg observed that she had not told Ms Sandra Nguyen, a Consultant Psychologist, that she had family in Australia, MKKR replied that her uncle is her mother’s brother. She did not want to tell Ms Nguyen about him at first because she was concerned that her mother would be verbally abused and her family affected if she said what he had been doing in Australia.

In giving oral evidence, MKKR also said that she does not know where her uncle lives. She has cut all ties with him. In her statement, MKKR had said that her uncle was in Melbourne.[29] In a form headed “Personal Details Form”, MKKR had indicated that she had no relatives living in Australia but that her parents and siblings lived in Vietnam and various uncles, aunts, cousins and nephews and nieces living in countries other than Vietnam and Australia.[30]
[29] Exhibit A at [6]
[30] G documents; G13 at 77

In cross-examination, MKKR agreed that she had been involved in the collection of the equipment and the establishment of the system in the house. She said that she received only $15,000 from her former partner and gave that money to her aunt in Vietnam. The debt owed by her parents has not yet been paid in its entirety. Most of it has been paid, MKKR said, but she had borrowed money from Mr CO, to repay her uncle. She could not remember how much she owed Mr CO because she had borrowed an amount of money each time. It would have been about $5,000 or $6,000. MKKR said that she knew of only one car that was purchased and not of two referred to by Judge Mullaly. She said that she did not know about the total amount of $60,000 until she went to court.

A.1.1.3 Judge Mullaly’s sentencing remarks in relation to Mr P

In his sentencing remarks in relation to MKKR, Judge Mullaly noted that he said that he relied in large part on those he had made in sentencing Mr CO. They are relevant in putting MKKR’s statement in context. After noting that Mr CO had overstayed his tourist visa and had survived on the generosity of friends, including that of MKKR for the previous 12 months, Judge Mullaly said:
“5. You smoked cannabis and drank too much alcohol. These have been a problem for you since your teenage years. In Australia you incurred debts. You were referred by friends to a man known as Uncle Minh, who was said to be able to provide work.
6.Once you met Uncle Minh, you became involved in the establishment and cultivation of the crop of cannabis in … [suburban Melbourne]. You went with him to a shop where significant amounts of equipment were purchased. You assisted in the set-up of the system and then kept it going, including, at times, as you said to the police, ‘planting seeds’.
7.It is not said that you paid for the equipment. The cultivation occurred in five separate rooms and significant damage was caused to the house in the setting up of the hydroponic system.”[31]
[31] G documents at G11; 49

A.1.1.4 Psychologists’ description of behaviour relating to offence

Ms Sandra Nguyen is a Counselling Psychologist who first saw MKKR on 23 December 2015. In her report dated 28 December 2015, Ms Nguyen set out her understanding of the events leading to MKKR’s offending:
“… [MKKR] explained that she has no immediate or extended family in Australia and had to take care of herself after her arrival. She explained that she struggled to adjust to living away from home and the cultural differences between the two countries. She reported that she commenced a relationship with another overseas student from her course who was also Vietnamese. She explained that this provided her with comfort and security being separated from her family and homeland. She stated that she was very naïve and trusting of her partner and therefore, was easily led. She explained that she also became involved in crime to help her family out in Vietnam as they were suffering extreme financial hardship. She stated that she now realised that he used her to help him cultivate cannabis and she feels very remorseful for her actions. She explained that after incarceration she discovered that she was pregnant and when she informed him, he totally distanced himself from her and their relationship ended.
… [MKKR] stated that she had a miscarriage after about two months. She became very depressed and withdrew from others. She reported that she was grieving over the loss of the pregnancy, breakdown of the relationship, loss of trust in men and her imprisonment. She explained that the ordeal had been shattering to her and her family. She described feeling betrayed and manipulated by her ex-partner. …”[32]
[32] G documents; G9 at 38-39 and see also Ms Nguyen’s Supplementary Report dated 11 May 2016: Exhibit B at 3-4

Mr Mathew Staios is a Consultant Psychologist who wrote a report after conducting a clinical interview and undertaking psychological testing of MKKR. He had been given a Letter of Instruction by her solicitors and copies of the Minister’s Statement of Facts and Contentions and of Ms Nguyen’s report dated 11 May 2016. His understanding of the events surrounding MKKR’s offending conduct was this:
“Upon arriving to Australia, … [MKKR] reported exposure to a very small social network of Vietnamese individuals. She characterised her first year in Australia as difficult due to her limited English language proficiency, and reported experiencing periods of social isolation. She commenced a romantic relationship with her ex partner, Mr …[P], who was a fellow Vietnam international student. She characterised this relationship as emotionally neglectful and reported that Mr …[P] has a tendency towards physical violence. In June 2013, … [MKKR] stated that her family’s farm endured severe flooding, resulting in a destruction of crops and leading to them experiencing further financial hardship. As her parents were supporting her with university tuition, she reportedly feared deportation, as she was not in a position to cover payments. Furthermore, … [MKKR] stated that her levels of stress were further compounded as a result of her family’s finical [stet] hardships and felt obligated to assist them through this period. The aforementioned issues, in combination with … [Mr P] negative influence, reportedly led to … [MKKRs’] decision to act as ‘crop sitter’, in the hope of alleviating her personal and familial poor financial difficulties. … [MKKR] expressed remorse in her decision to violate the law and attributed her offending to multiple personal stressors, a lack of social support and guidance during a very difficult period in her life.”[33]
[33] Exhibit C at [3]

A.1.3 Consideration

I have summarised the evidence that MKKR has given and statements that she has made to those concerned with her case at some length. That summary shows a variation in the account she has given of events over time. I will touch only on some of them.

Beginning with the statements made to police at the time of her arrest, MKKR said that she had no involvement in the matters that took place at the house in suburban Melbourne. She did not acknowledge her guilt until after the conclusion of the committal proceeding. To Ms Nguyen, she said that she was very naïve and was trusting of her partner and easily led. Her solicitors put that forward to the Department when responding to the Department’s Notice of Intention to consider refusal. In a letter dated 31 March 2016, they wrote that her trust and loyalty to her previous partner made her oblivious to what was right and wrong.[34] At the hearing, MKKR has spoken of being frightened of her ex-partner and of her uncle. She has spoken for the first time of being required to repay a significant amount of money lent by her aunt and uncle to her parents.

[34] G documents; G12 at 62

The sentencing Judge referred only of her need to earn money to survive in Melbourne and to assist her family in Vietnam. No mention is made of her parents’ having borrowed a significant sum of money. Judge Mullaly has not mentioned her being scared and frightened of Mr CO or of her uncle or of the concern she expressed at the hearing that her mother would be abused, at least verbally by her aunt if she did not repay the money. He did mention that she was brought into the scheme by her then boyfriend and that she was doing what she was told to do by others. At the same time, he stated that MKKR had been involved as an active important cultivator who was more than a crop sitter. This was not how Mr Staios understood her role when he interviewed her for the purposes of his report.

Mr Albert submitted that I cannot use the statements set out in the Psychologists’ reports as evidence of what happened in relation to the events at the house and to other related events. I agree with him. They are no more than hearsay in regard to those matters and I do not rely on them. Where I do rely on them is to support my finding that MKKR has not given a consistent version of events from the time she was arrested until the present time. Mr Albert submitted that I cannot know what MKKR told the Ms Nguyen and Mr Staios and that she might have told them things that they have not included in their reports. That may be so but, in the absence of their being called to amend or supplement their reports, I accept that the reports of Consultant Psychologists will set out an accurate statement of the facts and assumptions that informed their report and the sources of that factual information. That is a requirement set out in the Tribunal’s Guideline entitled “Persons Giving Expert and Opinion Evidence” which is in terms similar to cll 2.1(e) and (f) of the Federal Court’s Practice Note CM7 entitled “Expert witnesses in proceedings in the Federal Court of Australia”. I return to these issues later.

I also note that the inconsistencies in MKKR’s evidence relate not only to peripheral matters but to matters that go the heart of the seriousness of the offending. In describing her activities to Mr Staios so that he understood her activities to be those of a crop sitter, for example, she has given a version of her activities that is inconsistent with the version of events that was accepted by Judge Mullaly. He regarded her as more than a crop sitter and an active important cultivator. He sentenced her on that basis and I am not permitted to make findings of fact in this case that depict her offence as something different in kind or seriousness from that found by the sentencing Judge. This issue was considered by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v SRT (SRT) when considering a related situation under ss 200 and 201 of the Migration Act:
“... it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under section 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.”[35]
[35] [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349 at [40]; 244; 358

In view of this, I have had regard to Judge Mullaly’s sentencing remarks in considering the seriousness of the offences of which MKKR has been convicted. Cultivation of cannabis in commercial quantities is a serious offence let alone in quantities amounting to three times what is regarded in law as a commercial quantity. As Judge Mullaly observed, the ultimate product from the crop has serious effects on many users. He observed that vulnerable individuals are often used as crop sitters. MKKR was not a crop sitter but nor was she an organiser who stood to reap rich profits from the plants as they matured, were harvested, processed and sold. For all that, she admitted to receiving a sum of $60,000 with Mr CO. This is not an insignificant amount and reflects, I find, MKKR’s having a role somewhat above a mere crop sitter. That is so even though both stayed at the house at times.

MKKR’s part in setting up the systems in the house take her participation to a higher level than that of a crop sitter. She was also convicted of theft of over $18,000 worth of electricity. That is a considerable amount of electricity and points to an involvement beyond that of a mere crop sitter. So too does MKKR’s assertion in her written statement that, when she was arrested, she was two days short of paying the rest of the money that she owed her uncle. If I accept that MKKR owed money to her uncle, and I will return to that, she had paid him approximately $20,000 of the $25,000 her family owed him. I have reached that sum on the basis of her evidence that Mr CO gave her $15,000 and she borrowed a further $5,000 or $6,000 from him. That would suggest that she was expecting a further $5,000 or so two days after she was arrested. She never received it but that shows that she was an active important cultivator as found by Judge Mullaly.

I also find that MKKR took part in the operation for at least three months or so. That is a significant amount of time. It was an operation that worked on a rotation system so that plants matured at different times. Although Judge Mullaly found MKKR to be slightly less culpable than Mr CO, her lesser culpability led to her being sentenced to a term of imprisonment only two months shorter than that imposed on Mr CO. In each case, they were head sentences over three years. Given that, in MKKR’s case, she did not have any prior convictions, this is a sentence that reflects the fact that the offences of which MKKR has been convicted are serious offences.

A.2Risk to the Australian community should the non-citizen commit further offences or engage in serious conduct

Paragraph 11.1.2 of Direction No. 65 states:
“(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
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 non-citizen reoffending; and
iievidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short stay visa.”

A.2.1 The evidence

A.2.1.1 MKKR’s statement

MKKR said in a written statement that she adopted at the hearing that she regretted deeply that she had been involved in the cultivation of drugs with Mr CO and her uncle. She said:
“… I regret it now because I now understand the harm that drugs can cause people. I am very sorry that I was involved for this reason.”[36]
[36] Exhibit A at [32]

MKKR continued:
“I had never been involved in any criminal activity before this offending.
I will not be involved in any criminal activity again in the future, I am confident of this for many reasons.
First, I learned the lesson about being involved in crime the hard way. I found my time in prison very difficult. It gave me time to reflect on what I did and what caused me to do it.
Second, I know that the reason I was involved in this activity was because of the very difficult personal situation my family and I were in that time. In particular, the debt we owed to the person I was living with whose wife was threatening and attacking my family.
My family’s situation has now eased very considerably. The farm is succeeding. My sister has a kindergarten teaching job also, which provides the family with additional income. In addition, I know that mu current partner has savings and will assist me and my family if such a situation arose again. He has already helped pay for things like my brother’s Korean language studies.
Third, I have cut all ties with my uncle. I have had no contact with him since I was arrested. I want nothing to do with him.
Fourth, I have also stopped having contact with … [Mr CO]. He was a bad influence and a source of anxiety and bad decisions for me.
Fifth, I have a real hope about a future with … [Mr P]. My dream is that we get married and have children. I want to carry the children and live with him as my husband. I am positive about my future with him especially because of the support I am getting from him.’[37]

[37] Exhibit A at [33]-[40]

A.2.1.2 MKKR’s oral evidence

In cross examination, MKKR said that she studied for her Pharmacy Degree over a three year period with the last six months devoted to practical workplace experience in a hospital. At the hospital, she dispensed to patients medication prescribed by doctors. MKKR agreed with Ms Grinberg that, during her course, she learned the importance of administering the correct drug in the correct dose. When Ms Grinberg put the further proposition that there could be serious consequences if the wrong drug or the wrong dose of the correct drug were given to a patient, MKKR replied that everything she did was done according to a doctor’s instructions. She agreed that there could be bad consequences for a patient’s health if she did not follow instructions.

When Ms Grinberg put to her that her statement that she had not understood the harm that drugs can cause people was not accurate, MKKR replied that the course she had studied was not a tertiary course but was more like a diploma course. It did not go into medicine in detail. She knew about medicines in general terms but she did not know about drug substances. MKKR said that she did not know that drugs can be contained in medicines.

A.2.1.3 Psychologists’ reports

In her second report dated 11 May 2016, Ms Nguyen expressed the opinion that MKKR’s risk of reoffending is low. She expressed this view in the following passage:
“… [MKKR] showed remorse for her offending and has served the term of her imprisonment without further incident. She expressed sincere sorrow, shame and has insight into her offending. The impact and devastation that it has caused to her, her family and future has been dramatic and undeniable. … [MKKR] acted out of desperation to help support her family in Vietnam who were facing losing their livelihood. It was an isolated incident which … [MKKR] explained will never happen again. … [Mr P] is also financially supporting her family in Vietnam when needed, however she explained that her siblings are now working full time in Vietnam and there are no longer financial debts or pressures. Her risk of reoffending is low. MKKR has no previous criminal history. …”[38]
[38] Exhibit B at 10

Mr Staios found that MKKR’s results on the Level of Service Inventory-Revised (LS-R) test indicated that she is currently a low risk of recidivism. That risk was assessed on the basis of:
“… the following protective factors: (i) no history of poor mental health and functioning (ii), minimal offence history, (iii) no history of substance use history, (iv) and no presence of antisocial personal traits, (v) educational achievement, (vi) stable and supportive family network, (vii) stable interpersonal relationship, (viii) and insight into triggers associated with offending.”[39]
[39] Exhibit C at [17]

He went on to express his opinion that:
“… The relationship between her psychological functioning and history of offending seems to have arisen in the context of mounting financial pressures, maladaptive coping mechanisms, a lack of social supports to foster healthy and proactive methods of dealing with adverse situations, and the influence of negative peers. The aforementioned factors, in conjunction with high levels of stress and dependency, led … [MKKR] to gravitate towards a dominant individual and ultimately place herself in a situation in which she was unable to properly weigh up the potential negative ramifications of her actions. Her difficulty appears to have been further compounded by her submissive nature, that is, she appeared to present as an individual who is likely to struggle in instances where assertiveness is required. Had … [MKKR’s] personality predispositions and adjustment issues been absent prior to her offending, it is likely that she would have acted in accordance with societal norms and refrained from offending. Based on the current assessment, it is my opinion that she did not display evidence of severe psychopathology and/or entrenched maladaptive personality traits that are likely to be perpetuated in the future. …
Overall, it is my opinion that … [MKKR’s] capacity to be rehabilitated in the community is positive at this time, despite her past challenges, particularly if she were to be provided with support services, and guidance to follow through on current recommendations. Her risk of recidivism was assessed as low, suggesting good rehabilitation potential. …[MKKR] presented with several protective factors against re-offending from which her risk can be moderated, including, a supportive partner, no history of substance use, no presence of antisocial personality traits, and a minimal offence history. Should the court decide to grant … [MKKR] a partnership visa, it is my opinion that with the correct level of support, she is highly likely to refrain from committing other offences. Furthermore, gains made via psychotherapy in the community will allow her the opportunity to apply newly learned coping skills to her naturalistic environment. This option will also allow … [MKKR] to remain connected to her partner, which in my opinion maximise rehabilitation potential and will also result in stabilisation of her symptoms of depression. …”[40]
[40] Exhibit C at [19]-[20]

A.2.2Consideration
A.2.2.1 Principles relevant to consideration of expert opinion evidence

Unless there is a statutory provision to the contrary, the task of the Tribunal is to determine the correct process it should itself follow[41] and follow it in reviewing an administrative decision in respect of which an application has been made to it. The outcome of that review should be the correct or preferable decision on the material before the Tribunal at the time it makes its decision.[42] That process starts with ascertaining the law that is applicable and the issues that are relevant, considering the probative material that is available to it and making findings of fact that are based on that material and relevant to the issues. Unless varied by another enactment, the Tribunal makes any findings of fact on the basis that it is reasonably satisfied of them.[43] This equates with its doing so on the civil standard of proof and so on the basis of the balance of probabilities.[44]
[41] In determining that process, regard will be had to principles such procedural fairness and the particular requirements of the relevant statutory provisions under which the decision was made and the review conducted.
[42] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577; 46 FLR 409 at 68; 589; 419 per Bowen CJ and Deane J
[43] Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; 31 ALR 666; 44 FLR 41 at 160; 690; 68
[44] Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537 at 546-547; 334-335

In assessing the evidence or material to determine whether it is probative, the Tribunal is not bound by the rules of evidence.[45] The Tribunal often expresses itself in terms of whether the evidence has weight or not or whether it will be given more or less weight. There are occasions, though, on which it will decide that the probative value of evidence or matter is so slight or non-existent that it will not have regard to that evidence or matter. When it decides that the probative value is so slight or non-existent, it will often do so on the basis that the evidence would not be admissible in a court according to the rules of evidence. The rules of evidence generally reflect the views reached by the courts as to the evidence that can be relied on to have probative value.
[45] Administrative Appeals Tribunal Act 1975, s 33(1)(c)

Opinion or expert evidence is one area in which regard is often had to the rules developed by the courts. It is the subject of Part 3.3 of the Evidence Act 1995 (Evidence Act), which provides that such evidence is not admissible to prove the existence of the fact about the existence of which the opinion was expressed.[46] The general inadmissibility of such evidence is subject to certain exceptions. One of those exceptions is found in s 79(1) which provides:
“If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”
[46] Evidence Act, s 76(1)

In this case, the expertise of the two psychologists who prepared reports on MKKR or Mr P is not called into question. That is the first issue raised by s 79(1). The second issue is that the opinion expressed in evidence by the witness is wholly or substantially based on his or her specialised knowledge. Again, that issue is not called into question in this case for both psychologists have done so. Therefore, I do not need to address the principles relevant to those issues further.

Meeting those two issues is not, however, enough to ensure that opinion evidence will be accepted in evidence. I do not propose to set out a comprehensive guide to expert evidence but will focus on one aspect of the rules that have been developed at common law and under s 79(1) of the Evidence Act. That is that regard must be had to the facts on which an expert bases an opinion and upon which that opinion depends. In Australian Securities and Investments Commission v Rich[47] (Rich), Austin J said that facts of that sort must be proven or agreed upon before an expert witness’s opinion can be given weight.[48] An expert witness may observe facts that do not depend upon specialist knowledge and that evidence is admissible even under the Evidence Act as opinion based on evidence of what the person saw, heard or otherwise perceived about the matter.[49]
[47] [2005] NSWSC 149; (2005) 190 FLR 242
[48] [2005] NSWSC 149; (2005) 190 FLR 242 at [260]; 304 (citations omitted)
[49] Evidence Act, s 78

In Rich, Austin J considered the consequences in a court of failing to identify and articulate the assumed, accepted and observed facts:
“ Thus, if the expert fails to identify and articulate the assumed, accepted and observed facts upon which he or she proceeded, the court may well be unable to identify those facts, with consequences of several kinds. First, if the court is uncertain about the factual basis used by the expert, it may be unable to comprehend the opinion so as to decide how much weight or probative value to give it. Second, if the factual basis is not articulated, the court may be unable to determine whether the facts assumed or accepted by the expert correspond to the facts proved or admitted at the hearing …. This difficulty goes to the weight or value of the evidence, on any view, and may go to strict admissibility, if the ‘basis rule’ discussed at 6.7 is correct. Thirdly, in extreme cases the consequence of failure to articulate the factual basis may even be inadmissibility for irrelevancy. In Quick v Stoland, Branson J remarked that a bare expression of opinion which does not disclose its factual basis will be incapable of affecting the assessment of the probability of the existence of any fact in issue in the proceeding, and will therefore be irrelevant under s 56(2).”[50]
[50] [2005] NSWSC 149; (2005) 190 FLR 242 at [297]; 312

What is the situation if the expert witness has identified and articulates the facts on which an opinion is based but those facts differ from those found by the Tribunal? Implicit in the passage I have set out in the previous paragraph from the judgment of Austin J in Rich, is the proposition that lack of concordance will at least go to the weight or value to be accorded to the evidence. In a court, it may even go to admissibility of the evidence. His Honour’s conclusion is consistent with the earlier case of Arnotts Ltd v Trade Practices Commission[51] (Arnotts), in which the Full Court of the Federal Court concluded that:
“… What does matter – the point emphasised by Sir Richard – is that the assumptions upon which the opinion is based are identified and articulated. Of course, if the assumptions made by the witness turned out to be different to those ultimately found by the Court, the opinion might have little relevance. …”[52]
[51] (1990) 24 FCR 313; 97 ALR 555 per Lockhart, Wilcox and Gummow JJ
[52] (1990) 24 FCR 313; 97 ALR 555 at 351; 595

In more recent times, the same issue was in Dasreef Pty Ltd v Hawchar[53] by Heydon J. His Honour was in dissent on the disposition of the case but not otherwise with the plurality who

did not address this particular issue. He said:
“… The Full Court of the Federal Court of Australia correctly cited Ramsay v Watson [[1961] HCA 65; (1961) 108 CLR 642] as holding …: ‘The proposition that an expert’s opinion based upon certain assumptions which are not ultimately proved in evidence is irrelevant is a fundamental principle of the law.’ Irrelevance is inadmissible.
… It is irrelevant because it stands in a void, unconnected with the issues thrown up by the evidence and the reasoning processes which the trier of fact may employ to resolve them … If the expert’s conclusion does not have some rational relationship with the facts proved, it is irrelevant. That is because in not tending to establish the conclusion asserted, it lacks probative capacity. Opinion evidence is a bridge between data in the form of primary evidence and a conclusion which cannot be reached without the application of expertise. The bridge cannot stand if the primary evidence end of it does not exist. The expert opinion is then only a misleading jumble, uselessly cluttering up the evidentiary scene.”[54]

[53] [2011] HCA 21; (2011) 243 CLR 588; 277 ALR 611; French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ

[54] [2011] HCA 21; (2011) 243 CLR 588 at [89]-[90]; 622

Whether there is sufficient parity between the assumptions and the findings of fact made by the trier of fact is ultimately a question of fact as explained by the High Court in Paric v John Holland (Constructions) Pty Ltd:[55]
“ It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence … But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels JA in the Court of Appeal … to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.
As Wigmore states …, ‘the failure which justifies rejection must be a failure in some one or more important data, not merely in a trifling respect’. …”[56]
[55] (1985) 62 ALR 85
[56] (1985) 62 ALR 85 at 87-88

Just how does an expert witness state the assumptions underpinning the expert evidence given to the trier of fact? The Full Court of the Federal Court has specifically rejected an approach that permits an expert witness not to disclose the underlying assumptions in his or her evidence and to review the evidence in this way. They did so in Arnotts on the ground that it would unnecessarily prolong a trial but, more importantly, on the basis of:
“… the difficulty in predicting the ‘permutations and combinations necessary to cover all possible findings by the Court’. If an economist were permitted to express opinions upon the effect of the evidence given, without identifying the facts which he or she assumed for the purpose of those opinions, it would be impossible for the Court to know how to apply that evidence. One of the permutations or combinations may have rendered the opinion inapplicable in the expert’s eyes but the Court would never know.”[57]
[57] (1990) 24 FCR 313; 97 ALR 555 at 352; 596

If evidence given as expert evidence should transgress one or more of these boundaries from time to time, those transgressions do not necessarily render the whole of the evidence inadmissible in a court. That which does not transgress may properly be regarded as admissible.[58]
[58] Arnotts Limited v Trade Practices Commission (1990) 24 FCR 313; 97 ALR 555 at 353; 597

As I have said, the Tribunal is not bound by the rules of evidence but the principles I have set out are no less applicable to it than to a court. While the Tribunal may have some latitude in the material to which it has regard, at the end of the day, both it and a court are required to rely on evidence that is relevant to the issues that must be decided. The principles that are applied by a court in ascertaining the admissibility of opinion evidence are equally apt in determining the relevance or probity of that evidence in the Tribunal. The Tribunal’s Guideline entitled “Persons Giving Expert and Opinion Evidence” issued by the President on 30 June 2015 are based on those principles. Of relevance in this case, are cll 4.1(b) and (c) of that Guideline. Clause 4(1)(b) requires the letter of instruction or details of the questions or issues that the person was asked to address as well as a reference to any material that he or she was given to consider. Clause 4(1)(c) requires a written report to state “details of any facts and assumptions that inform the report and the sources for the factual information in the report.” In his decision in Re Heaney and Federal Commissioner of Taxation,[59] Senior Member Fice referred to a draft version of the Guidelines written in very similar terms. He observed that:
“… The reasons for these guidelines are to accord procedural fairness to both the parties before the Tribunal on a hearing. As the guidelines state, and in accordance with notions of procedural fairness, failure to comply with the guidelines may be relevant to determining the weight which will be given to that evidence.”[60]
[59] [2013] AATA 331; (2013) 138 ALD 144; 60 AAR 59
[60] [2013] AATA 331; (2013) 138 ALD 144; 60 AAR 59 at [101]; 167; 83

A.2.2.2 Consideration of risk of re-offending

The difficulty that I have with the reports of both Psychologists on this issue is that, at least to some extent, they are not based on the facts of MKKR’s offending as I have found them to be or as Judge Mullaly has found them to be. Mr Staios, for example, describes her offence as that of a “crop sitter”. No reference is made to the significant amount of money that she received from her activities be it $15,000 or some greater amount. Her conviction for stealing over $18,000 worth of electricity is overlooked. I find that conviction together with MKKR’s conviction for cultivation of a commercial quantity of cannabis do not fall within the description of a “minimal offence history”. That finding is supported by the sentence that Judge Mullaly imposed on her.

Neither Ms Nguyen nor Mr Staios refers to some significant facts that Mr Albert submits I should accept. In her first report, for example, Ms Nguyen did not refer to any loan by MKKR’s aunt and uncle to her parents. There is mention of the straitened circumstances in which her parents found themselves but not of the abuse that had been inflicted on her mother because she had not made regular repayments on such a loan. Ms Nguyen understood that MKKR became involved in criminal activity because of the extreme financial hardship being endured by her family in Vietnam. Straitened circumstances of MKKR’s family are also referred to in Ms Nguyen’s second report dated 11 May 2016. There is a reference to her mother’s having borrowed money from her uncle and then being unable to pay him back after a failed harvest due to flooding. MKKR felt guilty about having placed extra financial strain on her family by coming to Australia. No mention is made of MKKR’s uncle or of his suggesting to her how she could earn the money to repay him, or at least her aunt.

Ms Nguyen did not make no reference to any abuse that MKKR says that she endured at the hands of Mr CO. In her earlier report, Ms Nguyen describes the relationship between MKKR and Mr CO as providing MKKR with comfort and security when she was separated from her family and homeland with no immediate or extended family in Australia. No mention is made of MKKR’s uncle with whom she said she lived for some months when she came to Australia. No mention is made of any abuse at the hands of her former partner, Mr CO in her second report just as there had been none in her earlier report dated 28 December 2015. In both reports, Ms Nguyen noted that Mr CO had distanced himself from MKKR when she told him that she was pregnant. There is no mention made of any abuse and no mention is made of Mr CO’s beating her or of requiring her to self-terminate an earlier pregnancy. That does not detract from Ms Nguyen’s later note that MKKR felt very depressed over her miscarriage and the breakdown of her relationship.[61]
[61] Exhibit B at 5

Only Mr Staios reported MKKR’s suffering abuse at the hands of Mr CO. He reported Mr CO’s being emotionally neglectful and as having a tendency towards physical violence and of his being a negative influence that led to MKKR’s offending.

Taken individually, none of these matters that I have identified is necessarily determinative of an assessment of the risk of MKKR’s re-offending. Together, they may be relevant in making that assessment. When facts of this sort are asserted by MKKR but are not addressed in the reports of the Consultant Psychologists, I do not find that I can place a great deal of weight on those reports in their assessment of the risk of MKKR’s re‑offending.

I do accord them some relevance, though for they are relevant in illustrating that MKKR has told different people a different version of events. They are different versions simply because they are slightly different versions of the same main narrative. Their differences are such that they are different narratives. The narrative has changed to one of no involvement in the offences to accepting her role and the receipt of the proceeds in the narrative presented to Judge Mullaly. That narrative has now changed to one of being encouraged by Mr CO and her uncle to take part in the cannabis cultivation to earn money to repay the debt while being reassured that everything would be all right. These changes of narrative do not encourage my finding that MKKR has reached a stage of understanding of her part in the cannabis cultivation operation that can take her through to an understanding of why she became involved in it.

One aspect to which Ms Nguyen and Mr Staios do both refer is MKKR’s relationship with Mr P. Both refer to the deep commitment between MKKR and Mr P. It was a relationship that was forged when they were both incarcerated at the Dame Phyllis Frost Centre. Mr P, who then presented as a woman but regarded himself as a man, was serving a term of imprisonment beginning on 14 July 2014 for perjury and for receiving money totalling some $18,000 by deception. The two convictions arose out of unrelated events. MKKR and Mr P immediately became friends and then started a relationship and lived together in prison from August 2014. Mr P was released on 9 February 2015 while MKKR remained and continued to serve her sentence until 8 February 2016. Mr P visited MKKR twice each week when she was at the Dame Phyllis Frost Centre because that was all he was permitted to do. Since MKKR has been at Maribyrnong, Mr P has visited her every day travelling from one side of the city to do so. He has shown total devotion to her and to her family to whom he has sent regular amounts of financial support.

Mr P has also shown admirable strength in facing his own diagnosis of Gender Dysphoria and has begun treatment to become in body the man he feels himself to be within. Ms Nguyen has written two reports about Mr P’s situation and the difficulty that he faces. While dealing with them, he has found the strength to support MKKR. She has also supported him first from prison and then from Maribyrnong. Their mutual support and their love for each other may well be mutually beneficial to each of them as they step out onto new paths but that is not enough to keep a person on a chosen path. As Mr P has already done in relation to his gender identity, MKKR has to find her own inner strength to acknowledge who she is and why she is as she is before she can before she can set herself on her own path to her own goal of not re-offending in the future. Her various versions of her narrative persuade me that she has not yet done that. Until she has does so, the risk that she will re‑offend is not insignificant.

Should MKKR commit further offences of the same type as those that she committed in the past, the consequences to the Australian community will be serious. Drug addiction, whether to cannabis or otherwise, is a debilitating condition that affects not only the drug addicted person but their families and the community. In the case of cannabis, an addicted person relies on supply of the drug and that supply begins with a single seed that is nurtured until it becomes a mature plant. The person who is involved in establishing the hydroponic and lighting system that is part of nurturing that seed is an essential part of the production of the drug. Even though the rewards may vary at various points along the chain, participation at any point in the chain of illegal drug production is serious.

B.2Best interests of minor children in Australia affected by the decision

There are no minor children in Australia whose interests are relevant in this case.

B.3Expectations of the Australian community

Paragraph 11.3 of the Direction states that:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.”

The Australian community expects that those who come to Australia will abide by its laws. There can be no doubt that it is difficult for many international students who come to Australia to study. The fees are not inconsiderable and an international student may find the living costs higher than those in his or her home country. Although the relevant documents relating to MKKR’s enrolment at Deakin University were not in evidence, I am aware from other cases that students are generally advised of living costs by the tertiary institution with which they are enrolling and information has to be provided to show that the fees and living expenses can be met. Information of that kind is, in any event, available on the Internet.

The Australian community is not unsympathetic when things go wrong. Things go wrong for Australia’s permanent residents as much as for those who are here for a specific purpose and a specific time. Times of trouble are often more difficult to face when one is far from home and far from loved ones. In some circumstances, the Australian community is prepared to overlook lapses in behaviour in response to difficulties and even criminal offending but it expects a person to make some effort to find an alternative course and to help him or herself. Turning to crime within nine months or so of arriving in Australia is not consistent with what the Australian community expects. She never began the degree course that she said that she had paid for. It also expects that those who have transgressed to be open and forthright about what they have done. For the reasons that I have given, I am not satisfied that MKKR has yet reached that stage.

Other considerations

The four other considerations are summarised in paragraph 12:
“a)       International non-refoulment obligations;
b)        Impact on family members;
c)        Impact on victims;
d)        Impact on Australian business interests.”

A.International non-refoulement obligations

In so far as it applies to a person who has not made an application for a protection visa, paragraph 12.1 of the Direction states:
“(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulment obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of these obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to non-refoulement obligations can be raised in response to a notice of intention to consider refusal of their visa under s 501 of the Act, or can be clear from the facts of the case (such as where the non‑citizen is an applicant for a protection visa).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
(5)…
(6)…”
As indicated in paragraph 12.1(1), an application for a protection visa must satisfy s 36 of the Migration Act. Section 36(3) provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in a country other than Australia. That provision is qualified by s 36(4) to the extent that it does not apply in relation to a country in respect of which:
“(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.”
A.1 Submissions

A non-refoulement obligation is an obligation not to require a person to return, deport or expel a person to a place where he or she will be at risk of a specific type of harm. Australia’s non-refoulement obligations arise, for example, under the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol (Refugees Convention). On behalf of MKKR, Mr Albert submitted that paragraph 12(1)(c) of the Direction is not limited to considerations relating to an applicant for a protection visa under s 36 of the Migration Act. In this case, he submitted, Mr P is an Australian citizen who feels compelled to move to Vietnam if is loved one is required to leave Australia. If he moves to Vietnam, he will face discrimination either on the basis of his being a woman in a relationship with a woman or as a woman who is transitioning to a man. In considering this submission, he relied on the case of SZIED v Minister for Immigration and Citizenship[62] (SZIED) to support the proposition that I cannot second guess Mr P’s evidence that he will relocate to Vietnam should MKKR be required to leave Australia. I need to consider the non-refoulment aspects of the Direction in light of Mr P’s stated intention.

[62] [2007] FCA 1347; Moore J

A.2 Consideration

SZIED concerned a decision made by a delegate of the Minister refusing to grant a protection visa to SZIED and his wife. Only SZIED pursued his claim. Various issues were considered and raised on appeal. The only issue relevant to the passages relied on by Mr Albert, however, related to the question whether SZIED could reasonably be expected to relocate to an area of Colombia other than the area in which he had previously lived and in which he had been persecuted. Central to SZIED’s case was his evidence that he would feel compelled to return to the same area of Colombia where he was persecuted. He felt compelled to do so because his father still owned a farm in that area and that farm still produced some coffee. If SZIED were to return to Colombia, he would feel compelled to return to that farm because it belonged to his family, part of his family’s income was derived from that farm and farm work was the only kind of work that he had done in Colombia.

The Refugee Review Tribunal (RRT), as it then was, did not accept SZIED’s evidence saying that he had been prepared to live in Australia without contact with his farm while working in the construction and cleaning industries. He could do the same in another area of Colombia. In allowing an appeal from a judgment of the then Federal Magistrates Court dismissing an appeal from the RRT, Moore J said:
“51 However what the Tribunal has done, in my opinion, is to provide bare logical alternatives to what the appellant indicated he would do without testing whether the logical alternatives, in the face of the appellant’s asserted wish to return to the farm, were reasonable. The question of whether an asylum seeker, who claims of having been persecuted have been accepted, will be compelled to act in a particular way because of family obligations, is not answered by pointing to conduct plainly arising from his earlier persecution. That is, it was not open to the Tribunal to reject the appellant’s claim that he would feel compelled to return to the family farm if he were to return to Colombia, by pointing to the fact that he abandoned the farm by fleeing to Australia. His fleeing to Australia was to escape persecution. The Tribunal did not give any real consideration to the specific impediment raised by the appellant, namely that he would feel compelled to return to work on the family farm.
52 On one view, the Tribunal’s conclusion that it ‘did not accept the [appellant's] claim in this regard’ was no more than a finding of fact. That was the approach of the Federal Magistrate. But in substance, it was significantly more. It was not a finding about past events but a conclusion that it would be reasonable to expect the appellant to relocate within Colombia without given any real consideration to the specific issue he had raised. An assessment of whether it was reasonable in the circumstances to expect the appellant to relocate could not be made by merely pointing to the fact that the appellant had not been on the farm for some years because he is in Australia and had not been doing farm work whilst in Australia. The test propounded by Black CJ in Randhawa [Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437] requires that the evaluation be proper, realistic and fair and all the circumstances be taken into account. …”

Although this is a completely different case from that considered by Moore J in SZIED, I have no difficulty in accepting Mr P’s evidence that he intends to relocate to Vietnam if MKKR is required to leave Australia because she is refused a visa. It does not follow from my acceptance of his evidence that concerns relating to his treatment should become the basis for considering paragraphs 12(c) and 12.1 of the Direction. SZIED was the applicant for a protection visa and so the focus was naturally upon what he felt compelled to do should he be required to return to Colombia. In this case, the visa applicant is MKKR. She is the focus of the non refoulement provisions of the Direction and in relation to whom Australia has an obligation “not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.”[63] Mr P is not a person whom Australia can forcibly return, deport or expel to another country for he is an Australian citizen.
[63] Direction No. 65; [12.1(1)]

Consistent with paragraph 12.1(4) of the Direction, I do not propose to consider Australia’s non-refoulement obligations in the context of MKKR’s circumstances. I will consider her circumstances in the context of their impact on her family members but it is more appropriate that issues relating to non-refoulement are considered in the context of any application she may choose to make for a protection visa.

B. Impact on family members

Paragraph 12.2 elaborates on the second of the Other Considerations:
“Impact of visa refusal on 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.”

B.1 Consideration

On the evidence that I have in this case, I find that MKKR’s partner, Mr P, is in his mid 30s. His parents came to Australia from Vietnam as refugees in the 1970s. Mr P feels that he had very little support from his parents when he was young. He lived with, and was brought up by, his grandparents. As their English has always been poor, he learned to speak Vietnamese.

Mr P was born as a female in Australia on 6 April 1980 but felt from a very early age that he was different and preferred the company of boys and toys regarded as more suitable for boys. Mr P commenced his first relationship with a female when he and she were about 15 years of age and students at the same school. When he was about 20 years of age, he commenced a relationship with a man and they married. Mr P tried make the marriage work but he felt that he could not deny his true self. He struggled with his sexuality and gender issues and was aware of the long term implications that they would have on his life. Ultimately, the marriage failed but Mr P felt that, with that failure, his assurance about his gender disposition and his need to be a man, grew. Until he met MKKR, though, he tried to put them to one side. Mr P put his efforts into building up a successful personal training business that he operates six days each week. He has individual clients who pay him $40 per half hour session. Mr P does not have his own gym facilities but he pays $450 a year to a gym and can use their facilities at any venue he chooses. He arranges his work at any time to suit his clients from 6:00am until late at night but also so that he can visit MKKR each day. When she was still at the Dame Phyllis Frost Centre, he was able to work longer hours because he could only visit her two days each week and not seven as is currently the case.

I accept that Mr P has been diagnosed with Gender Dysphoria and has been approved to undergo treatment to transition to a male. That involved his being first psychologically assessed by medical specialists. Ms Nguyen reported that Mr P is undergoing hormone treatment as part of his gender transition and plans surgical intervention in the future. Mr P has, Ms Nguyen reported, found the process physically, emotionally and psychologically profound. As well as coping with that, Mr P has struggled to be supportive and available to MKKR whom she reported he loves dearly and for whom he is making significant sacrifices so that he can see her every day. Mr P has told Ms Nguyen that, without MKKR, he would not have the conviction or strength to undergo his life changing decision to undertake the gender transition process. I note that he did not begin the first step in the process until after his release from prison.

I accept that Mr P had planned that MKKR would be with him when he began hormone therapy and had deliberately deferred his first course on the assumption that she would be released from prison in December 2015. Indeed, he had made a significant investment in a Prada handbag and wallet for her to celebrate her release. Instead, MKKR was taken into immigration detention. Mr P is waiting until MKKR can live with him before he undergoes a mastectomy as it will be painful and he is not comfortable with anyone else bathing him. Further surgery will follow but he will not undertake that until he has the right support, Mr P said in his statement.

Finally, Mr P wishes to change his legal status to that of a man. He can only do that, he said, after he has had gender reassignment surgery. When he is legally recognised as a man, he wants to marry MKKR. He cannot undergo gender reassignment unless he has MKKR by his side. If MKKR is permitted to remain in Australia, they can support and love one another freely and start a family together. He wants that, Mr P said, and he also deeply wants to be a man in appearance and at law.

Ms Nguyen administered tests designed to measure the negative emotional states of depression, anxiety and stress. Mr P’s scores placed him in the Normal Range for Depression and Anxiety and in the Mild Range for Stress. In Ms Nguyen’s opinion, Mr P would benefit from having MKKR present to support her through the process and to provide her with some stability, love and care. That will help to reduce the stress, strain and emotional toll which can accompany the process, Ms Nguyen said.

If MKKR is not permitted to remain in Australia, Mr P has told Ms Nguyen that he would move to Vietnam. If he were to do that, he would not be able to continue the gender reassignment process because of the cost and the lack of facilities in Vietnam. Mr P understands from MKKR that they would not be treated well as a couple in Vietnam because he would still be regarded as a woman. He wants to spend the rest of his life with MKKR. Unless MKKR is permitted to remain in Australia – even for just a few months while he recovers from the surgery – he feels that he will not be able to achieve his wishes of being with her and of being a man. In his view, a move to Vietnam would mean that he would have to stop his gender transition, which he needs for his long term well-being. Mr P said that he would do that to be with MKKR even though that would also mean his moving to a homophobic and transphobic country.

I have various documents referring to the social environment in which lesbian, gay, bisexual and transgender (LGBT) people live in Vietnam. The most comprehensive is a report prepared by the United Nations Development Programme (UNDP) in partnership with the United States Agency for International Development (USAID) following a Viet Nam National LGBT Community Dialogue held in Hanoi and Ho Chi Minh City in June 2013. The Findings of UNDP and USAID were summarised in the Executive Summary to the report:
“This report provides an overview of LGBT rights in Viet Nam as related specifically to employment; education; health care; family affairs; the media; policies, rights and laws; and community. The report provides an overview of LGBT history in Viet Nam, reviews recent developments and includes key strategies for improving the rights of LGBT people through policy advocacy, support services, media representation and research. The report also explores organizational development and capacity-building as it relates to the LGBT community and other Key stakeholders in the area of LGBT rights.
The year 2012 marked a turning point for the LGBT community in Viet Nam with media exposure, prominent and positive events, and support from the public and government. A remarkable amount of activism and community organizing took place in this period. However, negative laws or a lack of laws contribute to the stigma and discrimination in a broad range of areas from sexual behaviour to same-sex marriage and recognition of sex changes.
In the sphere of employment, the Community Dialogue found that stigma and discrimination are common at the workplace. While some working environments are friendlier to LGBT people, there are a lack of positive role models and images of individuals who are open about their sexual or gender identity (SOG) at work, a reflection of a hostile and unfriendly environment. More research is needed. Dialogue participants further reported a lack of activism to change discriminatory employment practices.
The testimony of LGBT people on their experiences in educational environments portrays a harsh environment. Surveys report high levels of physical violence, sexual harassment and verbal abuse. The result is that LGBT people do not feel safe. They experience violence, drop out of school and have suicidal thoughts. There is a lack of relevant educational material and resources on LGBT issues, and social and counselling services. Civil-society organizations (CSOs) are addressing this with training, events and information-sharing.
A lack of LGBT-friendly health care facilities and services in Viet Nam is coupled with discriminatory attitudes and practices by the medical establishment towards transgender people and men who have sex with men (MSM). Transgender people often cannot access gender-confirmation surgery … hormones or relevant counselling or information in Viet Nam due to the cost and other barriers. In the big cities, there are now support services targeting MSM with relevant training and information-sharing, yet training and awareness-raising for medical staff are still needed.
Progress has been made, changing the attitudes of families towards their LGBT family members. This has been particularly through the success and spread of the group Parents, Families and Friends of Lesbians and Gays (PFLAG), as well as the work of other CSOs. However, outside Ha Noi and Ho Chi Minh City these support groups are few or non‑existent. Traditional perceptions of sex, sexuality and family in Viet Nam make families generally hostile to LGBT individuals. There are no support hotlines and a lack of information. Many LGBT people get married to members of the opposite sex/gender as a result of social or family pressure.
For a long period, the media was extremely hostile towards LGBT people and their issues. Coverage was sensational and filled with inaccurate information. This was a major reason for social disapproval in Viet Nam of SOGI issues. While discrimination persists and there is a continued need for media training, the media’s perception of the LGBT community has improved over the last few years and LGBT and LGBT-supportive groups are using community media channels to provide alternate voices, and connect with each other. They are also leveraging international media sources and the Internet to change LGBT coverage across the media landscape. Books about LGBT people written by LGBT people themselves have been published.
The political and legal environment for LGBT people in Viet Nam is challenging and changing. While same-sex marriage remains illegal in Viet Nam, it is an issue of public discussion and interest with major advances made in 2013: the decriminalization of same‑sex wedding ceremonies and the right for same-sex couples to live together. LGBT community members and media find it challenging to engage with legal issues, finding it easier to tackle social issues and work through information-sharing campaigns. There is nascent work among LGBT civil society in Viet Nam to raise awareness of legal and rights issues, and open dialogue between the LGBT community and lawmakers. More discussion, forums, analysis and legal services are needed. At the same time, many studies have been carried out in recent years that have allowed a closer and more accurate examination of the issues that LGBT people face. The results of these studies have been communicated to the media, the general public, and also to policymakers and government to advocate for legal and policy reforms that will improve the life of LGBT people.
Despite challenges, the LGBT community in Viet Nam has grown stronger over the years. A number of CSOs have emerged to advocate for the rights of LGBT people in the country. The Community Dialogue found a need for more collaboration and cooperation among members of the LGBT community members and for a greater awareness of human rights violations. Still, community and online groups are forming and promoting networks that are connecting lesbians, gay men and transgender people. It was also found that charity events are useful for both community mobilization and improving the image of the LGBT community as a whole.”[64]

The remaining articles, dating from 1 January 2013 to 27 November 2014 and admitted in evidence, reflect the same views as those expressed in the report of the UNDP and USAID.

[64] G documents; G16 at 93-94 (footnote omitted)

In view of that report, I accept that there may be difficulties faced by MKKR and Mr P if he chooses to accompany her. If Mr P chooses to go to Vietnam before his surgery, I accept that he may be unable to complete his transition to the female gender either because gender-confirmation or sex-reassignment surgery is not available in Vietnam or because its cost is prohibitive. As a transgender person, he is also likely to encounter discriminatory attitudes in the medical profession generally and to find the cost of hormones to be a barrier to his transition.

If he remains in Australia, I accept that Mr P will have to continue his transition without the presence of the woman he loves and on whom he relies to give him the confidence to proceed with a process that is both physically and emotionally draining. I note that he did not start the process until he met MKKR even though he had long felt that his true self was a male and not a female. He did not start it even though I accept that he has the love and support of his parents, grandparents and sisters. On the basis of the evidence of Mr P, MKKR and Ms Nguyen, I find that he feels that, with MKKR, he can be the person whom he feels that he truly is; he no longer has to hide his true self.

My finding that Mr P would have to continue the process without the presence of MKKR does not equate to his having to undertake the process without her love and support. Mr P had initially planned his first hormone treatment for a time after MKKR would be released from prison. When his plans were dashed by MKKR’s being taken immediately into immigration detention, he went ahead with the treatment without her physically by his side. Unquestionably, he was able to see her every day by visiting her and able to have her physically present in his life each day but she has not been able to be at his side as he copes with all of the physical and emotional trauma that he is experiencing at this time. If Mr P remained in Australia while he continued his hormone treatment and underwent gender-confirmation surgery, I accept that the love and support that MKKR could provide would be the same as it is now but could not be shown by her physical presence. Unless Mr P were to visit Vietnam, it could only be offered by telephone and letters or visually by videotelephony products such as Face Time and Skype.

If Mr P were to undergo surgery so that it comes within the definition of “sex affirmation surgery” in the Births, Deaths and Marriages Registration Act 1996 (Vic) (BDMR Act), he will be entitled to apply to the Registrar of Births, Deaths and Marriages (Registrar) for the record of the sex shown on his birth registration to be altered from female to male.[65] In saying that, I have assumed that Mr P was born in Victoria because Mr Albert drew my attention to the provision. Registration of his birth in Victoria is a prerequisite of his being able to apply to the Registrar and so too are his being over the age of 18 years, as he is, and being unmarried. I note that the expression “sex affirmation surgery” is defined in s 4(1) of the BDRM Act to mean:
“… a surgical procedure involving the alteration of a person's reproductive organs carried out for the purpose of assisting the person to be considered to be a member of the opposite sex”.
[65] BDMR Act; s 30A(1)

If Mr P were to take this course, he would then join Ms P in Vietnam as a person of the male gender. That may not alleviate their difficulties but I have no direct evidence on that subject. For the purposes of this case, I accept that whichever path Mr P chooses to take, it is a difficult path for him to walk. With MKKR at his side in Australia, some of those difficulties would be eased. If MKKR is not permitted to remain in Australia, he has difficult choices. One path would mean that he must continue hormone treatment and undergo surgery without her physical presence to assist him and to give him succour and comfort. With her at his side, he may not be able to complete his transition to the female gender. Both may face discrimination of the sort referred to in the report of the UNDP and USAID.

C. Impact on victims

At paragraph 12.3(1), Direction No. 65 states:
“Impact of a decision to grant a visa 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 that information is available and can be disclosed to the non-citizen being considered for visa refusal.”

In this particular case, there are those who would have been victims had the police not raided the unit and the cannabis plants seized and ultimately destroyed. As it is the cannabis plants have been destroyed and there are no victims of the crime. At [44] and [74] above, I have had regard to the impact of cultivating cannabis on the Australian community.

D. Impact on Australian business interests

Paragraph 12.4(1) of Direction No. 65 states:
“Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project, or delivers an important service in Australia.”
On the evidence, I find that refusing MKKR a visa will not have any effect on Australia’s business interests. Should Mr P decide to move to Vietnam to live with her, he will not be able to continue his personal training business in Australia but that is not a matter that comes within the compass of paragraph 12.4(1).

Conclusion

I have already noted that MKKR has, in more recent times, expressed her fear of her ex‑partner, Mr CO. Consistent with that, her solicitors wrote to Maribyrnong on the day she was transferred there expressing her fear of Mr CO and her concerns should he be transferred to Maribyrnong. Her solicitors wrote that MKKR had received threats passed through other prisoners that, should Mr CO ever see her again, her life would be in danger.[66] Mr CO was not detained at Maribyrnong.
[66] Exhibit G

In her statement, MKKR explained that she thought that she feared harm from Mr CO’s family in Vietnam. They have, she said, threatened her with death if she returns because they think that she was the person responsible for his being arrested over the cannabis cultivation. MKKR does not refer to the means by which these threats were passed to her or by whom or when. In considering these threats, I have also had regard to the sentencing remarks of Judge Mullaly when he sentenced Mr CO. He has referred to Mr CO’s difficulties in his early life and to his incurring too many debts. Mr CO fully admitted his guilt to the police on his arrest. There is no suggestion in the sentencing remarks that he tried to blame MKKR and, indeed, Judge Mullaly refers to his living for the previous year on her generous support. Mr CO’s family may have a different view from his but I do not have sufficient evidence about those threats to find that they represent a serious threat to MKKR’s safety.

I also accept that MKKR may face difficulties in various aspects of her life should she return to Vietnam with Mr P at her side. Those difficulties may affect both her social environment and her future employment prospects. The extent of those difficulties is not something that I can gauge on the evidence that I have for they will depend on various lifestyle and environmental factors applicable to the particular circumstances in which she finds herself in Vietnam. Difficulties would be of the sort that I have outlined in the report of the UNDP and USAID, to which I have referred above.

At least at this stage, the difficulties faced by Mr P are vastly greater than those faced by MKKR. He has impressed me as a person who has suffered considerable anguish over his gender identity and who is enduring physical and emotional trauma to confirm who he is. His loyalty to MKKR is constant and his support of her emotionally and of her family financially admirable. He will be faced with difficult choices if MKKR is not permitted to remain in Australia but I think that I have no option other than to place him in that situation. The nature of the offences of which MKKR has been convicted, what I have found to be the risk of her re-offending and the consequences for the Australian community should she re-offend are such that I am satisfied that the interests of the Australian community outweigh the difficulties that will accompany her return to Vietnam and those to Mr P should he choose to join her there.

DECISION

For these reasons, I affirm the decision of a delegate of the Minister dated 8 April 2016 refusing her a Bridging E (Class WE) visa (Bridging visa) under s 501 of the Migration Act.

I certify that the one hundred and nine preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed: ………....................[sgd]...................................

Associate

Dates of Hearing  23 and 28 June 2016
Date of Decision  30 June 2016
Counsel for the Applicant                   Mr Matthew Albert
Solicitor for the Applicant                   Aila Melasecca
Aila Rose Melasecca
Counsel for the Respondent              Ms Krystyna Grinberg
Solicitor for the Respondent              Mr Bromley Hornsby
Sparke Helmore