MYLV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2025] ARTA 108
•17 February 2025
MYLV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 108 (17 February 2025)
Applicant/s: MYLV
Respondent: Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number: 2024/10062
Tribunal:Senior Member S Webb
Place:Canberra
Date:17 February 2025
Decision:The 26 November 2024 decision to refuse MYLV’s Protection (Class XA) visa application under s 501(1) of the Migration Act 1958 (Cth) is affirmed.
…………[SGD]…………………………
Senior Member S Webb
Catchwords
MIGRATION – mandatory visa cancellation – failure to pass character test – substantial criminal record – review of decision not to revoke visa cancellation – Ministerial Direction No. 110 – primary and other relevant considerations – protection of Australian community– serial offences – mental illness – drug use – remorse – risk of reoffending – strength, nature and duration of ties to Australia – expectations of the Australian community – legal consequences of decision – protection finding – effect of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 – no immediate prospect of removal – impediments if removed – balance of considerations – decision affirmed
Legislation
Migration Act 1958 (Cth), ss 36, 36A, 48A, 48B, 76AAA, 189, 196, 197, 197C, 198, 198AHB, 499, 500, 501, 501E
Migration Regulations 1994, Schedule 2
Cases
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
FYBR v Minister for Home Affairs [2019] FCAFC 185
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Nigro v Secretary, Department of Justice [2013] VSCA 213
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Secondary Materials
Direction no. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
Statement of Reasons
This is an application for review of a decision under s 501(1) of the Migration Act 1958 (the Act) to refuse MYLV’s application for a Protection (Class XA) visa (Protection visa).
MYLV applied for the Protection visa after his previous Refugee (Subclass 200) visa (Refugee visa) was mandatorily cancelled under s 501(3A) of the Act. Proceedings in respect of the mandatory cancellation in the Tribunal and in the Federal Court of Australia did not lead to revocation of the mandatory cancellation decision. As will appear, MYLV has a ‘substantial criminal record’ and he was serving a term of imprisonment.
The review is regulated by statutory procedures and limits set out in s 500(6A)-(8) of the Act.
An issue arose in respect of documents tendered by the Minister in a Hearing Bundle at the first hearing on 31 January 2025. MYLV objected on privacy, public interest and fairness grounds to detention centre records and documents the Minister obtained from International Health and Medical Services (IHMS), an entity then contracted to provide such services in onshore immigration detention centres, being admitted into evidence. In part, the objections arose as the documents were selective and were given to MYLV’s legal representatives very shortly before the hearing.
In order to address procedural fairness considerations within the limited time available under s 500(6H), (6J) and (6L) of the Act, I set the hearing forward to commence on 11 February 2025 and directed each party to provide properly considered submissions. In the result, following review of additional documents provided by the Minister, Ali Mojtahedi, MYLV’s lawyer, informed me he no longer pressed the objections. In addition to the Hearing Bundle,[1] a Statement of Agreed Facts[2] and an agreed bundle of IHMS documents[3] were tendered by the Minister and taken into evidence.
[1] Exhibit 1.
[2] Exhibit 3.
[3] Exhibit 2.
Facts
The following uncontroversial facts are established by the documentary and oral evidence before the Tribunal.
In January 1976, MYLV was born in Vietnam. He has 4 siblings (2 sisters and 2 brothers).[4]
[4] Exhibit 1, 151.
His father was a political prisoner in Vietnam. In or about 1988, when he was 12 years old, MYLV fled from Vietnam with an aunt to Hong Kong. They resided in an open resettlement camp. MYLV stated he worked in a restaurant for a while and commenced smoking heroin at this time.[5] He stated “I had no family to care for me and things happened to me that I find very hard to talk about even now”.[6] On another account, he did not use illicit substances before travelling to Australia, although he allegedly began consuming alcohol at the age of 15 (in 1991).[7] His father escaped from prison and fled from Vietnam to Hong Kong with MYLV’s mother and four siblings.[8] They resided in a ‘closed’ resettlement camp.[9] In or about 1990, the family members were granted refugee status. The family resided in Hong Kong for around 4 years.[10]
[5] Ibid, 509; 502 and 811 refer.
[6] Ibid, 152.
[7] Ibid, 773-774, 784.
[8] Ibid, 16.
[9] Ibid.
[10] Ibid, 193.
MYLV, his parents and 4 siblings were granted Refugee visas and first arrived in Australia on 20 May 1992.[11]
[11] Ibid, HB12.
MYLV attended school and completed Year 11. He did not complete Year 12 and stated this was due to heroin addiction.[12] Issues arose in respect of his behaviour.[13] In 1993, he engaged in offending conduct as a child (armed robbery using force on a person) which was dealt with by the ACT Children’s Court. In or about 1995, he came into contact with ACT Mental Health Services and was diagnosed with schizophrenia. On 11 March 1996, ACT Corrective Services reported MYLV was consulting a psychiatrist on a regular basis and anti-psychotic medication was being administered intravenously on a monthly basis by a community nurse.[14] MYLV was reported to have stated “he used the drugs [heroin and cannabis] daily until six months ago when he claims to have discontinued his drug us [sic] altogether as he realised it was “bad for me””.[15] From 23 October 1995 to 3 June 1997, MYLV attended Belconnen Mental Health Service for treatment of “drug-induced psychosis”.[16] On 22 October 1997, ACT Corrective Services reported, at the end of this treatment, MYLV was “no longer experiencing psychotic symptoms and no further treatment was deemed necessary”.[17]
[12] Ibid, 781.
[13] Ibid, 810.
[14] Ibid, 811.
[15] Ibid.
[16] Ibid, 801.
[17] Ibid.
In the period from 10 May 1996 to 11 June 2009, MYLV engaged in offending conduct as an adult. He was convicted of offences involving burglary, theft, assault, resisting and assaulting police, escape from custody, possession of illicit drugs, property damage, possession of offensive weapons and breach of bond or bail conditions. He was sentenced to fines, good behaviour bonds and terms of imprisonment.[18]
[18] Ibid, 76-77, 471-474, 476-477; 320-432, 441-455, 457-461, 772-814 refer.
On 22 October 2001, ACT Corrective Services reported MYLV’s “mental health treatment has been negatively impacted by his regular consumption of alcohol and illicit drugs” and the opinion of a psychiatric registrar that “it is very difficult to assess both the severity of his Schizophrenic illness due to his continued substance abuse and whether the factors at work during his bouts of negative behaviour are drug and alcohol induced or largely the result of his mental illness”.[19]
[19] Ibid, 774.
On 14 April 2003, ACT Corrective Services reported, MYLV was using cannabis and heroin on a regular basis until his incarceration in December 2002, after which he commenced treatment under the methadone program.[20] At that time, MYLV was “under a Treatment Order until 7 September 2003 for Olanzapine” and he was reported to be “stable and does not have any psychotic symptoms”.[21]
[20] Ibid, 797.
[21] Ibid.
From June 2009 to October 2018, MYLV was not convicted of any offences. He was subject to Psychiatric Treatment Orders from time to time.[22] He has not worked in employment since 2010.[23] During this period, he obtained anti-psychotic treatment, including periods of hospitalisation, and regular injection of anti-psychotic medications. He obtained support under the National Disability Insurance Scheme (NDIS).[24]
[22] Ibid, 22, for example.
[23] Ibid, 769.
[24] Ibid, 16.
On 13 September 2018, a psychiatric treatment order which had been in force from 3 April 2018 was revoked.[25] It is probable at that time his psychiatric condition was relatively stable and he was complying with medical treatment.
[25] Ibid, 22.
In or about October 2018, MYLV’s mother, who I will refer to as ‘Mrs AB’, observed changes in MYLV’s behaviour: “He would talk to himself a lot, seemed confused and irritable and was very forgetful”.[26]
[26] Ibid, 16.
Between 10 and 13 November 2018, MYLV committed criminal offences in four incidents for which he was subsequently convicted. By his own account, prior to engaging in this conduct, he obtained an advance from Centrelink which he used to purchase illicit drugs, including methamphetamine (ICE), which he then consumed. MYLV gave evidence he could not recall elements of the offences even though he entered guilty pleas. The four incidents, “four series of offences”,[27] were addressed by Magistrate Taylor on the basis of a Statement of Facts compiled by police.[28]
[27] Ibid, 81.
[28] Ibid, 463-469.
In the first incident, at around 11.50pm on Sunday 11 November 2018, MYLV trespassed into a house and entered the bedroom of a 16-year-old child and mumbled “Can I stay here and sleep in your room?”.[29] The child resided in the house with two uncles and two younger cousins (aged 7 and 9). The child left the room and alerted his uncle, who entered the room and told MYLV “This is not your house you have to leave”. MYLV responded “This is my house. I was told I could stay here”. MYLV left the child’s bedroom and entered the bathroom, where he commenced brushing his teeth with the child’s toothbrush and attempted to put on the child’s shoes. He was prevented from doing so and was escorted from the premises by the child’s uncles. Outside the premises, MYLV picked up a child’s scooter and struck one of the uncles three times with it. He then struck a screen door with the scooter, before leaving the scene on the scooter.
[29] Ibid, 465.
The second incident occurred a short while later, early in the morning on 12 November 2018. One of the uncles from the first incident was awoken by the screams of his 80-year-old female neighbour, who lives alone. She was observed in her backyard in a distressed state, and police were called and attended at 6.48am. On the police Statement of Facts, the elderly woman was woken by a noise and was confronted by a male person who was wearing no pants. The male’s pelvic area was obscured and she did not know if he was wearing underwear. Police alleged:
The male grabbed [the woman] by her arms and held them down by her sides. The male then rubbed [the woman’s] genital area through her pants and then rubbed himself in his genital area. [The woman] pushed the male away and using her keys unlocked the back door. She saw the male open a storage cupboard and take a pair of her pyjama pants… [She] went out the back door and started calling for help. The male left with [the woman’s] pyjama pants. [The woman] has been unable to find her keys since the male left and believes the male has taken them.
…
At the front of the residence Police observed a smashed window. At the rear of the house Police observed the kitchen window to be smashed… [30]
[30] Ibid, 466.
The third incident involved a reported disturbance around 7.00am on 12 November 2018 at a house close to the scene of the previous incidents. The residents of the house included two children, 6 and 8 years old, and their parents. Police alleged:
… a rock had been thrown through the front lounge room window causing it to shatter and cover [the] 8 year old child in glass. The child was sitting on a couch in the lounge room at the time.
[The parents] saw a male through the window…
They then saw the male throw a second rock through the window.
[The father] went out of the house and followed the male as he walked away… The male then turned and confronted [the father] by raising both hands. In one hand he held a bunch of keys and in the other he held a white brick. [The father] felt threatened and afraid that the male would attack him causing him an injury. [The father] then retreated back to the house.[31]
[31] Ibid.
The fourth incident occurred a few minutes later. The mother reported to police the male had returned to the premises. Police attended and apprehended the male person (MYLV). Police alleged MYLV “swung a closed fist” at one of the officers, without connecting, and he continued to struggle against police. MYLV was tasered, subdued and taken into custody where a Forensic Medical Officer recommended he should undergo a mental health assessment.[32]
[32] Ibid, 467.
On 16 July 2019, ACT Corrective Services reported MYLV’s account that “his current drugs of choice [were] methamphetamine and cannabis” which he was consuming on weekends in the period prior to the events on 11 and 12 November 2018.[33] It appears MYLV reported “up to 10 months ago he had been on the methadone program on a sporadic basis for approximately four years”.[34] At that time, MYLV was “assessed as a medium-high risk of general reoffending due to his lengthy criminal record, significant mental health issues and illicit substance abuse”.[35]
[33] Ibid, 769-770.
[34] Ibid, 770.
[35] Ibid.
On 19 August 2019, MYLV was convicted by the ACT Magistrates Court of a string of offences involving burglary, act of indecency without consent, destroy/damage property not exceeding $5,000 (2 counts), trespass, knowingly obstruct/resist Territory public official, common assault (2 counts) and minor theft (2 counts). He was sentenced to terms of imprisonment ranging from 14 days to 24 months to be served partly concurrently, with a 28-month total effective term of imprisonment to be served as full time detention, with an 18-month non-parole period.[36]
[36] Ibid, 74-76.
On 9 January 2020, MYLV’s Refugee visa was cancelled under s 501(3A) of the Act. MYLV made representations, seeking revocation of this decision. The decision was not revoked. MYLV exercised his entitlement to apply for review by the Tribunal. In the result, on 22 June 2021, the Tribunal (differently constituted) affirmed the non-revocation decision. MYLV lodged an appeal in the Federal Court against the Tribunal decision. Those proceedings were dismissed. The matter before the Court was the non-revocation of the mandatory cancellation of MYLV’s Refugee visa, which turns on s 501CA(4) of the Act.
On 18 June 2020, ACT Corrective Services reported MYLV “would benefit from engaging in sex offender treatment”.[37]
[37] Ibid, 759.
On 14 March 2021, MYLV completed his term of imprisonment. He was taken into immigration detention.
On 9 June 2023, MYLV lodged an application for a Protection visa. This application was initially refused by a delegate of the Minister on 17 July 2023. MYLV applied for review by the Tribunal. On 25 August 2023, the Tribunal, differently constituted, made a positive protection finding for the purposes of s 36(2)(a) of the Act and remitted the application to the Minister.[38]
[38] G21.
On 26 November 2024, a delegate of the Minister decided to refuse MYLV’s Protection visa application on character grounds under s 501(1) of the Act. By MYLV’s application, it is this decision the Tribunal must review.
On 26 November 2024, MYLV was issued a Bridging R (Class WR) (Pending Removal) visa (BR visa) and he was released into the community.
Issues
MYLV’s application is to be decided under s 501(1) of the Act. The issues are:
(a)does MYLV fail to pass the character test set out in s 501(6) and (7) of the Act; and if so
(b)should the discretion to refuse his Protection visa application be exercised?
When deciding these matters, the Tribunal must comply with directions issued by the Minister under s 499(1) of the Act, presently Direction No.110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).
The Direction sets out Objectives in paragraph 5.1. Applicable principles are set out in paragraph 5.2:
1Australia 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.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
4The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
5Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
6With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
7Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
8The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Direction sets out the following instructions and guidance in Part 2:
6Making a decision
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
7Taking the relevant considerations into account
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
8Primary considerations In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
…
9Other considerations
(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on Australian business interest
The correct approach to fulfilling the condition imposed by s 499(2A) was discussed by the plurality in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[39] In that case, the condition required the Tribunal:
…to take into account, as mandatory considerations, the primary considerations identified in para 8 and the other considerations in para 9, where those considerations were relevant to the decision. Fulfilment of the condition required the Tribunal to identify which of those mandatory considerations were relevant to the particular circumstances of the particular applicant. Then, having identified the relevant mandatory considerations, the exercise of the discretion under s 501CA(4) required the Tribunal to engage in an evaluative assessment involving the weighing of those relevant mandatory considerations with other relevant considerations.
[39] [2024] HCA 12, [33].
No different approach is applicable when dealing with the Direction and the discretion conferred by s 501(1) of the Act. The evaluative assessment is not an exercise of mathematics, akin to adding scores. It requires the weighing and balancing of mandatory and other considerations which are relevant to exercise of the discretion, taking into account the operation of the Act in the particular circumstances of MYLV’s case should his Protection visa application be refused.[40] Furthermore, in compliance with the objective set out in s 5.1(2) of the Direction, where the discretion to refuse to grant a visa is enlivened, the decision maker must consider the specific circumstances of the case when deciding whether to exercise the discretion.
[40] NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, [9]-[10].
Character test
There is no dispute MYLV does not pass the character test in s 501(6) and (7) of the Act.
MYLV has a ‘substantial criminal record’ as he was sentenced to a 28-month ‘total effective’ term of imprisonment. Even if the separate sentences are considered, it is perfectly clear: MYLV was sentenced to a 24-month term of imprisonment for the indecency offence and an 18-month term of imprisonment for the burglary offence, each of which surpass the threshold of a ‘substantial criminal record’ for the purposes of s 501(7) of the Act.
I am satisfied MYLV fails to pass the character test.
Discretion to refuse
Consequently, the discretion conferred by s 501(1) of the Act to refuse MYLV’s Protection visa application is enlivened.
When deciding whether to exercise the discretion, the specific circumstances of MYLV’s case and all relevant primary and other considerations set out in the Direction must be taken into account and weighed in an evaluative assessment.
Protection of the Australian community
Under the Direction, the safety of the Australian community is the highest priority of the Australian Government. To that end the Government is committed to protect the community from harm resulting from criminal conduct or other serious conduct by non-citizens. The Direction sets out the principle that entering or remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law abiding and they should not cause or threaten harm to individuals or the Australian community.
The nature and seriousness of MYLV’s conduct to date under s 8.1.1 of the Direction and the risk to the Australian community under s 8.1.2 should he commit further offences or engage in other serious conduct must be assessed and evaluated.
The Minister submits in a case of this kind, in which MYLV has applied for grant of a Protection visa, this consideration (and the primary considerations more generally) are directed to circumstances which would arise if the visa is granted, without regard to the present factual circumstances of his case. In the Minister’s submission, it would be wrong to take account of the fact that MYLV has been issued a BR visa and released from immigration detention into the community, as doing so would leave the primary considerations with no work to do.
I do not agree for three reasons.
Firstly, while MYLV has applied for grant of a Protection visa, the issues arising under s 501(1) of the Act, and the Tribunal’s review jurisdiction, are confined to character considerations and the discretion to refuse the application on character grounds. Even though elements of the primary and other considerations under the Direction have a prospective element, these arise from found facts in the particular circumstances of his case.
Secondly, the Preamble to the Direction sets out objectives in s 5.1. The objective in s 5.1(2) includes the following direction:
… Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case when deciding whether to exercise the discretion.
This must be viewed through the framework of principles set out in s 5.2 which decision-makers are required to apply when deciding whether to refuse or to cancel a non-citizen’s visa under s 501 of the Act. The principle in s 5.2(1) is expressed as “a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia”. This conception is reinforced by the principle in s 5.2(3) where a non-citizen who has engaged in criminal or other serious conduct should expect “to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia”. The principle in s 5.2(2) provides context in terms of “the safety of the Australian Community”, the Government’s highest priority.
Thirdly, the safety of the Australian community informs the primary and other considerations which must be taken into account in any case. The relevant considerations are determined by the specific factual circumstances of the particular case. The difficulty in a case of the present kind is that, following the positive protection finding and NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs,[41] MYLV was issued a BR visa and was released from immigration detention. This state of affairs will continue if the discretion to refuse his Protection visa application is refused on character grounds. In that event, MYLV’s BR visa will remain in effect in accordance with cl 070.511 of Schedule 2 to the Migration Regulations 1994 (the Regulations). It will cease when one of the following conditions is met:
(i) when the Minister gives a written notice to the holder, by one of the methods specified in s 494B of the Act, stating that the Minister is satisfied that the holder’s removal from Australia is reasonably practical;
(ii) when the Minister gives a written notice to the holder, by one of the methods specified in s 494B of the Act, stating the holder has breached a condition to which the visa is subject;
(iii) when the Minister grants the holder another Bridging R (Class WR) visa under regulation 2.25AB.
[41] [2023] HCA 37.
The conditions applying to MYLV’s BR visa include weekly reporting obligations, [42] breach of which, if found, could result in a term of imprisonment under s 76B or 76DA of the Act.
[42] Exhibit 1, 19-21.
The Minister accepts there is no real prospect that it will be practicable to remove MYLV from Australia in the reasonably foreseeable future.
Consequently, the fact of MYLV being in the Australian community should be taken into account insofar as it is relevant to the consideration of primary and other relevant considerations, and the protection consideration in particular. This does not mean that the legal consequences of the decision under s 501(1) of the Act are to be considered under every relevant consideration. Considerations of that kind are to be considered under s 9(1) of the Direction.
Nature and seriousness of conduct
Magistrate Taylor found MYLV’s offences of trespass, common assault and minor theft in the first incident were aggravated by the presence of children and “the overall nature of [MYLV’s] conduct would undoubtedly have been shocking and concerning… particularly given the presence in the home of three children, two of whom were quite young”.[43] Her Honour determined the offences were “at the mid range for offences of this kind”.[44] The seriousness of this conduct is increased by the aggravating factors.
[43] Ibid, 82.
[44] Ibid, 83.
Magistrate Taylor stated that the objective seriousness of the burglary and the act of indecency offence is significant, albeit “at the mid range of offences of this kind”.[45] MYLV’s appearance and conduct was “bizarre and unpredictable” and the objective seriousness of the act of indecency is increased by aggravating features. The victim was an acutely vulnerable 80-year-old woman living alone in her own home who was violated in an “intimate and personal way that would have been terrifying, shocking, distressing and humiliating”.[46] This conduct is ‘very serious’ for the purposes of s 8.1.1.(1)(a) of the Direction. While MYLV’s intent is difficult to assess in the context of his drug-affected mental state at the time, this does not diminish the seriousness of his conduct. The minor theft and property damage offences are of a lower order of seriousness.
[45] Ibid, 83, 84.
[46] Ibid, 83.
MYLV’s conduct in the third incident involved common assault and property damage. The nature of his offending conduct would have been shocking and frightening, particularly as it involved violation of a family home, a child covered in shattered glass and the father feeling threatened and afraid on confronting MYLV. Nevertheless, this conduct is of a lower order of seriousness than MYLV’s conduct in the first two incidents.
Magistrate Taylor found the objective seriousness of MYLV’s offence in the fourth incident, resisting a Territory official, “sits towards the lower end of the scale”.[47] Nevertheless, it is conduct offending against a public official in performance of their duty and this is viewed as ‘serious’ for the purposes of s 8.1.1(1)b) of the Direction.
[47] Ibid, 85.
The sentences Magistrate Taylor imposed in respect of these offences reflect the objective seriousness of the offences, including aggravating factors as well as mitigating factors. Her Honour observed:
… the materials suggest that the defendant was in a very stable period with mental health, up to date with his medication regime and engaging with mental health supports. He was doing so well indeed that his psychiatric treatment order was revoked. Absent his diagnosis providing and explanation for his bizarre conduct, his admitted use of methamphetamine very close in time to the offences does provide an explanation.
I do not consider in the circumstances that the defendant’s mental illness reduces his oral culpability or renders him an inappropriate vehicle for general deterrence… I do take is [sic] mental illness into account as part of the subjective circumstances of the defendant.[48]
… So, to specific deterrence given the defendant’s criminal history, his concerning lack of insight in relation to the offending demonstrated in the presentence report and his use of illicit substances.
It is clear that the defendant does suffer from a chronic mental illness but that illness has been able to be successfully managed in the past, is a factor that goes towards his prospects of rehabilitation generally as is the ten year period that he has spent in the community without committing offences.
That say, given the significant role that the use of illicit substances has apparently played in this matter, any sentence I impose must bring home to the defendant that he must address his use of illicit substances in order to avoid coming before the court again.[49]
[48] Ibid, 88.
[49] Ibid, 89.
The almost 10-year period in which there is no record of MYLV being convicted of any offences, from June 2009 to November 2018, is a significant break from the pattern and frequency of his previous offending conduct as an adult from 1996 to 2009.
On 10 May 1996, MYLV was convicted of burglary, theft, attempted theft, possess prohibited weapon (2 counts), escape from custody, common assault and damage property (2 counts).[50] He was ordered to attend mental health treatment and entered a 3-year good behaviour bond on a $2,000 recognizance, subject to probationary supervision for 2 years. MYLV breached the conditions of supervision on 16 December 1996 and was granted bail, which he breached on 3 occasions to 22 October 1997.[51] On 29 April 1997, MYLV was granted bail in respect of a further charge of burglary.[52]
[50] Ibid, 474.
[51] Ibid, 801, 808-809.
[52] Ibid, 804-807.
On 23 January 1998, MYLV was convicted of theft, possess cannabis, burglary, failure to appear and breach of his recognizance. He was sentenced to 3 months imprisonment to be served by periodic detention, supervision under probation for 12 months, and a good behaviour bond for 2 years.[53]
[53] Ibid, 473.
On 18 February 1998, MYLV was convicted by the ACT Magistrates Court of assault police (3 counts), resist police (4 counts) and escape lawful custody.[54] He was sentenced to 2-month terms of imprisonment on each charge, to be served concurrently.
[54] Ibid.
On 21 October 1998, MYLV was convicted by the ACT Magistrates Court of possess offensive weapon (2 counts), possess prohibited substance (2 counts) and trespass on premises. He was fined, sentenced to a 9-month term of imprisonment (suspended), a 2-year good behaviour bond, supervision and probation for 2 years, and released on recognizance of $2,000.[55]
[55] Ibid, 77, 473.
On 22 February 2001, he was convicted by the Fairfield Local Court of offences involving stolen goods, custody of a knife in public, possession of heroin, break and enter with intent to steal. He was sentenced to a 4-month term of imprisonment.[56]
[56] Ibid.
Following his release from prison in May 2001, on 13 August 2001 MYLV engaged in offending conduct in which he brandished an imitation handgun at passing motorists. He was charged with firearms and assault (2 counts) offences. On 14 August 2001 he was referred for psychiatric assessment. The psychiatric registrar apparently reported to the ACT Magistrates Court that MYLV “proffers mental illness as an explanation for his recent antisocial conduct but I could find no evidence at examination for an acute psychiatric illness”.[57] On 22 October 2001, ACT Corrective Services reported MYLV’s “mental health treatment has been negatively impacted by his regular consumption of alcohol and illicit substances”.[58]
[57] Ibid, 775-776.
[58] Ibid, 776.
On 15 April 2003, MYLV was convicted by the ACT Magistrates Court of burglary (intent to steal), assault (three counts), escape from arrest, minor theft (2 counts), damage ACT Government property, fail to appear after bail undertaking (four counts), resist Commonwealth public official (three counts) and obstruct Commonwealth public official (two counts). He was sentenced to concurrent 7-month, 6-month and 3-month terms of imprisonment, with a 6-month term of imprisonment in respect of minor theft suspended on recognizance of $2,000 and a 2-year good behaviour bond, subject to 12 months supervision on probation.[59]
[59] Ibid, 459.
On 17 October 2007, MYLV was convicted by the ACT Magistrates Court of possess prohibited substance (heroin) and possess knife (a 30cm samurai sword) without a reasonable excuse. He was fined and released with a 12-month good behaviour order.[60]
[60] Ibid, 457.
On 26 November 2007, MYLV was convicted by the ACT Magistrates Court on 3 counts of fail to appear after bail undertaking. MYLV was released on a 12-month good behaviour order, under probation and supervision. MYLV was ordered to attend programs “particularly in relation to mental health issues” as directed.[61]
[61] Ibid.
On 8 April 2008, MYLV was convicted of breaching the 26 November 2007 good behaviour order. He was resentenced to a further 12-month good behaviour order, under probation and supervision.[62]
[62] Ibid.
On 19 June 2009, the ACT Magistrates Court dismissed, on the ground of mental impairment or mental illness. a common assault charge against MYLV under s 334 of the Crimes Act 1900 (ACT) and a charge of resist Commonwealth public official under s 20BQ(1)(c) of the Crimes Act 1914 (Cth).[63]
[63] Ibid, 471.
MYLV was not convicted of any offence until 19 August 2019. While the break in his offending conduct of almost 10 years can clearly be seen, the pattern of his offending up to 2009 is evident in the offences he committed in November 2018. The key elements include MYLV’s abuse of illicit drugs and the effect of doing so on his mental state. By his own account, prior to the offences he committed on 11 and 12 November 2018, he “had been on the methadone program on a sporadic basis for approximately four years”[64] and he obtained an advance from Centrelink to purchase his preferred drugs of choice, methamphetamine and cannabis. Thus, while the regular pattern of offending conduct prior to 2009 was broken for a lengthy period, important elements of it are evident in MYLV’s criminal conduct in November 2018.
[64] Ibid, 770.
MYLV has repeatedly attributed his offending conduct to his mental illness. The account he has given, supported by Mrs AB, of experiencing mental disturbance and voices in his head prior to the offences he committed in November 2018 must be approached with caution. Magistrate Taylor found his use of illicit substances played a significant role in his offending conduct and his mental illness was managed, treated and stable in the preceding period. It is possible MYLV experienced symptoms of his mental illness in October and November 2018, as he and Mrs AB assert. Even if that is correct, his use of cannabis and methamphetamine is likely to be the most significant factor which affected his mental state.
His criminal conduct in 2018 included an act of indecency without consent. The commission of a sexual crime of this kind is an escalation in the seriousness of MYLV’s prior offending. This is objectively so despite uncertainty in respect of MYLV’s intent at the time. It is not established MYLV broke into the elderly woman’s home with the intention to commit a sexual offence. The opportunistic nature of the sexual crime he committed does not reduce the seriousness of his conduct.
I accept Magistrate Taylor’s assessments of the impact MYLV’s offending conduct had on victims, particularly the children and the elderly woman, whose homes were violated.
Overall, I am satisfied that MYLV’s offending conduct is viewed as very serious and this weighs heavily in favour of refusing his Protection visa application.
Risk to the Australian community
When considering the need to protect the Australian community from harm, the Government’s view is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct is so serious that any risk it may be repeated may be unacceptable. Regard is also to be had, cumulatively, to the matters set out in s 8.1.2(2) of the Direction.
The clear focus of the inquiry is the risk of harm MYLV might cause to individuals or the Australian community should he engage in further criminal or other serious conduct.
The assessment of risk requires consideration of potentialities which rise from past conduct. As the plurality said in Minister for Immigration and Ethnic Affairs v Guo:[65]
The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.[66]
[65] (1997) 191 CLR 559.
[66] Ibid, 574-575.
The nature of harm should MYLV engage in further criminal or serious conduct requires consideration of the harm that can reasonably be expected to result from repetition of the criminal and serious conduct he previously engaged in. This includes physical and psychological harm to individuals, as well as theft, property damage and disruption of public safety and order. The objective seriousness of MYLV’s previous offending conduct and the level or degree of harm caused, including to an elderly woman, children and public officials, is significant.
Very serious harm could be caused should MYLV reoffend and engage in physical violence using a knife or other weapon, or engage in another sexual crime, while under the influence of illicit drugs which affect his mental state and his behaviour. In all likelihood, in that state, MYLV’s judgement and impulse control is impaired and his behaviour is highly unpredictable.
For the purposes of s 8.1.2(2)(a), the potential for serious harm to result should MYLV engage in further drug-related offending can readily be understood.
Under s 8.1.2 of the Direction, the tolerance of risk becomes lower as the potential for harm increases. The difficulty of assessing the likelihood or risk of a person engaging in criminal conduct in the future might be assisted by expert opinion.[67] In Tanielu v Minister for Immigration and Border Protection,[68] Mortimer J said:
It is also well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors: that is, factors which can be assessed objectively against statistical models to predict the risk category a person falls into, and dynamic factors personal to an individual which may moderate or exacerbate the risk the person otherwise could be said to pose. Those factors might include family support, alcohol and drug abuse patterns, employment and the like.
[67] Nigro v Secretary, Department of Justice [2013] VSCA 213, [124].
[68] [2014] FCA 673, 103.
There is little to go on in this case.
Prospectively, the risk of harm and the level of concern is raised by the unpredictable nature of MYLV’s conduct should he engage in polysubstance abuse, particularly alcohol[69] and drugs such as methamphetamine and cannabis, which have had a substantial adverse effect on his mental state and his behaviour in the past. This is exemplified by MYLV’s evidence he cannot recall key elements of his previous offences, including his act of indecency on the elderly woman.
[69] Ibid, 774.
MYLV asserts the previous pattern of his offending conduct has been broken and he now has insight into and remorse for his past conduct. He stated his “mental health is stable, and the medication I am taking is now working the way it should”.[70]
[70] Ibid, 126.
MYLV’s expression of shame for his past conduct in a letter to the Minister’s Department and his assertion he wanted to “said sorry to that lady” were made in the context of “hope I’ll get a visa when I come out of Villawood”.[71] In his oral evidence, he explained he was apologising for pushing the woman as he did not recall any act of indecency against her. MYLV gave evidence he has undertaken two rehabilitative courses: a Harm Minimisation Session on 16 January 2020 and an Alcohol Drug Awareness (harm) Prevention Training (ADAPT) program which was completed on 3 March 2020.[72] He accepted, however, that he could not recall the content of these programs other than how to use drugs safely.
[71] Ibid, 129.
[72] Ibid, 14, 15.
I am not satisfied MYLV has real insight into or remorse for his past conduct, or that he has engaged successfully in rehabilitation. On Magistrate Taylor’s assessment, MYLV’s mental health was stable prior to the offences he committed on 11 and 12 November 2018, and MYLV’s use of cannabis and methamphetamine led to his offending conduct. MYLV has repeatedly attributed his offending conduct to his mental illness and on careful examination of his evidence, I am not persuaded he truly accepts the significance of his polysubstance abuse on his past conduct. Even if he does, there is a risk the past pattern of him relapsing and re-offending might recur, and his resilience has not been tested in the community for a lengthy period following his release into the community on 26 November 2024.
Since being released into the community on 26 November 2024, MYLV has not obtained an appointment with Belconnen Mental Health Services, although I accept he and Mrs AB attempted to make an appointment on several occasions, without success.[73] I understand he is no longer obtaining treatment from Dr Lienert, his previous treating psychiatrist, and his prescription for 3 monthly injections of paliperidone has been changed by his long-term treating general practitioner, Dr Tuan Tran. The salient point is that, since 26 November 2024, MYLV has not obtained the benefit of psychiatric or psychological treatment, and he is relying on the efficacy of the treatment prescribed by Dr Tran: principally, single daily self-administered oral doses of Olanzapine (an anti-psychotic medication). I accept that Dr Tran might have a good understanding of MYLV’s condition, but he is not a psychiatrist.
[73] Ibid, 17.
While MYLV’s mental illness has been stabilised with appropriate treatment for periods in the past, his present voluntary treatment regime has been in effect only since 26 November 2024. In the past, MYLV’s mental illness was treated with Risperidone and Olanzapine, and subsequently by 3 monthly Paliperidone injections administered by a nurse.[74] His present treatment regime of daily self-administered oral doses of Olanzapine has not been considered or recommended by a psychiatrist. It is likely MYLV obtained some benefit from the most recent Paliperidone injection administered in November 2024. Whether the new treatment regime maintains stability of his mental illness once the effect of the Paliperidone injection has subsided is not predictable with any certainty.
[74] Ibid, 773, 797, 815.
Nevertheless, the greater risk is if MYLV resorts to polysubstance abuse or illicit drug use as he has done repeatedly in the past.
In a risk assessment by ACT Corrective Services on or about 13 May 2020, MYLV is reported to have “described himself as sometimes impulsive noting that he often drinks, gambles, and uses drugs” and stated “he often uses drugs when experiencing stress”.[75] MYLV gave oral evidence he is now fearful of drugs and he understands they are bad for him.[76] He strongly asserted he would not use drugs again.
[75] Ibid, 749.
[76] Ibid, 126.
MYLV has given such assurances in the past, including to the Tribunal in 2021,[77] but in each case he has subsequently engaged in further illicit drug or polysubstance abuse. For this reason, his assertion of reform must be approached with caution. By his own account, and there is no evidence to the contrary,[78] he ceased use of illicit substances at or about the end of 2023. Also, by his own account, he likes to go to a club once or twice each week, where he plays poker machines and drinks beers with acquaintances. MYLV has been in the community since 26 November 2024. This is only a short period to demonstrate the strength of his resolve to abstain from illicit drug use.
[77] Ibid, 517.
[78] Ibid, 846-847
The risk assessment was made applying the Static-99R actuarial tool in respect of static, non-changeable risk factors and the STABLE-2007 tool in respect of dynamic risk factors.[79] The overall level of risk MYLV might re-offend was reported to be “LSI-R: Medium/high”.[80]
[79] Ibid, 747.
[80] Ibid, 745.
There is no relevant material of probative value to suggest the assessed level of risk is incorrect or it should not be accepted as presently applicable.
There is evidence MYLV missed a number of appointments[81] and he was involved in a number of minor incidents,[82] such as putting graffiti on a staircase, during the period of his immigration detention. Little turns on this. MYLV explained he was bored in detention and he watched television to assist the time to pass, but he did not miss any medical treatment for his mental illness. MYLV was largely compliant with medical treatment during the period of his immigration detention, and his mental health appears to have been relatively stable.[83] He asserts Dr Lienert “found the correct dose” for his medication: a higher dose of 525mg of Paliperidone (also known as Invega) every three months, rather than the 150mg dose every month.[84] It appears this change was effected in or about 14 January 2022.[85] As I have said, after 26 November 2024, MYLV’s antipsychotic treatment regime was changed by Dr Tran and the effect of this change is not able to be reliably assessed.
[81] Exhibit 3.
[82] Exhibit 1, 836-845.
[83] Ibid, 545-555; Exhibit 3.
[84] Ibid, 126.
[85] Ibid, 854.
Considering relevant dynamic factors, MYLV obtains substantial support from immediate family members, principally Mrs AB and the two brothers with whom he resides in Mrs AB’s house. I understand Mrs AB assists MYLV to manage his money, although MYLV has his own bank account, and she supports him and encourages him to engage in the community. MYLV attends a Christian church every Sunday.
There is no direct evidence from MYLV’s siblings. MYLV gave evidence he does not speak with his sister who resides in Canberra, but he does engage with his sister who resides in Port Macquarie. I note in previous proceedings in the Tribunal, MYLV’s sister gave evidence in support of his case at that time.[86]
[86] Ibid, 522-524 refers.
MYLV submits that the conditions of his BR visa increase the risk he might relapse and reoffend. This is because the limited support he is able to obtain under the restrictive conditions of the BR visa, as set out in his case plan,[87] ended on 31 January 2025,[88] and he is precluded from accessing supports he previously obtained through the NDIS. He asserts the supports available to him under the expanded Status Resolution Support Services (SRSS) program, for which he is eligible as a BR visa holder, have not been sufficient to assist him since his release from immigration detention on 26 November 2024 and, in any event, they are only temporary for up to 12 months.[89] He argues without access to life-long supports of the kinds discussed in public NDIS documents,[90] his mental state may be adversely affected.
[87] Ibid, 904-910.
[88] Ibid, 909.
[89] Ibid, 911-921.
Mrs AB’s evidence is that the uncertainty of MYLV’s future residence in Australia should he remain on a BR visa would adversely affect his mental condition: “the instability would take him back to a bad mental health state”.[91]
[91] Ibid, 17.
MYLV and Mrs AB may well be correct, but there is no relevant medical or psychological material to support such a finding. The nature and conditions of MYLV’s BR visa do not prevent him from accessing Medicare and Jobseeker.
I am satisfied there is a medium to high risk MYLV might engage in further serious or criminal conduct. The risk is not mitigated by meaningful rehabilitation, insight or treatment. If past conduct is anything to go by, there is a very significant risk MYLV might engage in further polysubstance abuse or illicit drug use. There is no material of probative value on which to find the risk is increased by uncertainty over MYLV’s future visa status, although it can be accepted at a level of generality that his inability to access ongoing supports through the NDIS might increase the level of risk of recidivism. While this might increase the risk to some extent, and this is not supported by relevant material of probative value, on the available materials it does not significantly reduce the weight this consideration should be given.
This consideration weighs in favour of exercising the discretion to refuse MYLV’s Protection visa application.
Considering relevant factors under s 8.1 of the Direction, in accordance with the principle in s 5.2(5) and (6), Australia has a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life than serious conduct by visa applicants who have participated in and contributed to the Australian community for only a short period of time.
MYLV has resided in Australia since May 1992, having arrived when he was 16 years old. He has spent most of his life in Australia. This reduces the weight of the protection consideration somewhat.
The overall primary consideration relating to protection of the Australian community in s 8.1 of the Direction weighs in favour of refusing MYLV’s Protection visa application.
Family violence
There is no evidence MYLV engaged in family violence.
I am satisfied this consideration is not presently relevant.
Strength, nature and duration of ties to Australia
This consideration is explained in s 8.3 of the Direction.
As the decision under review turns on the discretion in s 501(1) of the Act to refuse to grant MYLV’s Protection visa application on character grounds, under s 8.3(1) of the Direction the impact of the decision on his immediate family members in Australia must be considered.
MYLV’s immediate family members in Australia are his mother, Mrs AB, and his four siblings. His father and a grandmother in Australia are deceased. Additionally, MYLV has a daughter who is now an adult.[92] MYLV’s two sisters each have partners and three children (nieces and nephews of MYLV); only two of these children are minors. One of MYLV’s brothers has a partner and a son.[93] The age of the son is unknown. There is no controversy that each of MYLV’s immediate family members are Australian citizens.
[92] Ibid, 170.
[93] Ibid, 180-181.
MYLV informed me he has no relationship with his daughter, who is now an adult. There is no evidence from this person. It is not possible to assess the impact of the decision on her.
MYLV gave evidence he does not talk to his sister who resides in Canberra, although he asserted a relationship with his other sister and her family in Port Macquarie. The impact of the decision on each of MYLV’s sisters and their families is difficult to assess on the available materials. None of these family members provided direct evidence in these proceedings. Nevertheless, it can be accepted at a level of generality that a decision to refuse MYLV a Protection visa on character grounds could impact MYLV’s sisters and their families, particularly the sister in Port Macquarie and her children, if MYLV was removed from Australia at some indeterminate time in the future.
Much the same can be said in respect of MYLV’s brothers. Even though the brothers reside with Mrs AB and MYLV, there is no direct evidence from either brother in these proceedings. There is simply no information about MYLV’s brother’s child other than his existence cited in MYLV’s Protection visa application.
Mrs AB will be impacted by the decision, should MYLV ultimately be removed from Australia to a third country. It is she who obtains support from MYLV with chores and other domestic activities. The decision will not impact on these supports while MYLV remains in the community. Mrs AB gave evidence she is adversely affected by MYLV’s preclusion from obtaining supports he requires under the NDIS, as this falls to her to provide and she is concerned about what will happen as she ages (she is presently 70 years old and suffering from health conditions which affect her mobility). She explained she lost Carer Payment when MYLV’s previous visa was cancelled. This causes financial stress to her as a pensioner.
Mrs AB provided moving evidence of her personal experience of shame and of being shunned by members of the Vietnamese temple she attends who attribute MYLV’s mental illness and his criminal offending to ‘bad parenting’. Even though I am sympathetic to her experience, these are not impacts of the decision under review.
The Minister asserts the consideration in s 8.3(2) is not applicable as the decision does not require consideration of whether to cancel or to revoke the cancellation of MYLV’s visa.
While this is probably correct, it is nevertheless relevant to consider that MYLV has lived in Australia for most of his life, from the age of 16. For better or worse, Australia is the place he knows best and it is his home, where his immediate family members reside as citizens. It is inevitable he has some ties to the Australian community, although there is no strong evidence of this. As his history demonstrates, he engaged in serious conduct soon after arriving in Australia. There is some evidence he worked in hospitality employment many years ago, but for the substantial proportion of his time in Australia MYLV has been in receipt of social security payments, including a disability support pension until his previous visa was cancelled.
This consideration weighs heavily against exercising the discretion to refuse MYLV’s Protection visa application.
Best interests of minor children
There are two minor children identified in MYLV’s Protection visa application. These are the younger children of MYLV’s sister in Port Macquarie. There is no direct evidence in these proceedings addressing the impact of the decision on MYLV’s two minor nephews.
MYLV asserts if the decision ultimately results in him being removed from Australia, his nephews will lose the opportunity to have a meaningful relationship with him.
At a level of generality, this might be so, but it is largely conjectural as the available evidence, scant as it is, suggests MYLV speaks to these children occasionally by telephone. He may well be able to do so should he ultimately be removed from Australia.
MYLV concedes this consideration can be given little weight against exercise of the discretion to refuse his Protection visa application. I am satisfied this is correct.
Expectations of the Australian community
Matters to be considered in respect of the expectations of the Australian community are set out in s 8.5 of the Direction.
The Government’s statement of Australian community expectations is, ‘as a norm’, generally adverse to any visa applicant who has engaged in serious conduct giving rise to character concerns in breach of those expectations.[94]
[94] FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR), per Charlesworth J at [75] and Stewart at [89].
Nevertheless, the consideration is not inimical to the consideration of relevant facts and circumstances, albeit without attempting to infer what the expectations of the Australian community would be in the particular circumstances of MYLV’s case.[95]
[95] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, [52].
The nature of MYLV’s serious conduct raises character concern in respect of his repeated polysubstance abuse and his use of illicit drugs in the context of his mental illness, resulting in self-serving, damaging and unpredictable behaviour, involving violence, burglary, theft and illicit substances. The concern is increased by MYLV’s offences against vulnerable members of the community, including an elderly woman and children in their homes. It is reinforced by his offences against Territory and Commonwealth public officials in the conduct of their duties.
While tolerance of such serious conduct is increased by the length of time MYLV has resided in Australia since childhood, this does not greatly reduce the weight of the character concern.
MYLV’s mental illness was stable prior to the most serious offences he committed in November 2018. While his mental illness is one element of the context in which the character concern arises, it is his pattern of drug-related or drug-induced conduct which is of far greater concern.
MYLV’s mental illness and the increased tolerance which flows from him spending most of his life in Australia notwithstanding, his offending conduct breaches the expectation he is to obey Australian laws while in Australia.
This consideration weighs in favour of exercising the discretion to refuse MYLV’s Protection visa application.
Legal consequences of the decision
The Minister accepts, correctly, that consequent to the previous Tribunal’s protection finding in favour of MYLV, s 9.1.1 and Australia’s non-refoulement obligations are engaged in his case. Consequently, by operation of s 197C(3) of the Act, there is no prospect MYLV will be removed from Australia to Vietnam.
Under the present state of the law, the immediate legal consequence of the decision to refuse MYLV’s Protection visa application on character grounds is that he will continue to reside in the Australian community under the conditions of his BR visa, pending removal to a third country. By operation of s 76AAA and s 198AHB of the Act, should another country grant MYLV permission to enter and remain there, by agreement with that country, the Australian Government has power to pay the country to take him and to take action to relocate him which MYLV is required to assist under condition 8541 of his BR visa. Even though the Minister accepts there is presently no realistic prospect of such action, the possibility of removal and uncertainty about if or when this might occur, and in what circumstances, is likely to continue for MYLV. This state of affairs can be expected to continue for the rest of his life unless and until MYLV is removed to a third country, the applicable law is changed, or he is found by a court to have breached the conditions of his BR visa, whereupon he would be subject to a mandatory sentence of at least 1 year imprisonment.
The legal consequences of the present policy apply in all cases of this kind where a protection finding has been made and, under Australia’s non-refoulment obligations, the person cannot be returned to their home country, and there is no arrangement for the person to be removed from Australia to another country. By operation of s 48A and s 48B of the Act, exercise of the discretion to refuse MYLV’s Protection visa application will preclude him from applying for a Protection visa in the future unless the Minister determines otherwise. As a BR visa holder, he will be precluded by operation of s 501E of the Act from applying for any other kind of visa.
Even though there is no medical or psychological evidence to suggest the legal consequences of the decision might adversely affect MYLV’s mental health, at a level of generality, doing the best with the available information, it is possible uncertainty about his future residence in Australia, his inability to access supports under the NDIS and the risk of breaching strict BR visa conditions might well have an adverse impact on his equanimity and, possibly, on his mental state, although this is not established by relevant material of probative value.
The Minister accepts, correctly in my opinion, that this consideration weighs against exercise of the discretion to refuse MYLV’s Protection visa application.
Extent of impediments if removed
The Minister asserts s 9.2 of the Direction is not presently applicable as there is no prospect MYLV will be removed to his home country, Vietnam.
Section 9.2(1) is in the following terms:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The Minister is correct to the extent that MYLV will not be removed from Australia to his home country. Consequently, this consideration does not arise and it cannot be given weight, one way or the other.
Even if the consideration in s 9.2 is construed as applicable to any country, rather than the person’s “home country”, under the present state of the law, a third country would necessarily have to agree to allow MYLV to enter and reside there, with agreement by the Australian Government for that to occur.
There is no useful purpose speculating about such matters when the prospect of MYLV being removed from Australia to another country is entirely hypothetical and presently with no realistic prospect of this occurring. Nevertheless, in MYLV’s circumstances, he would face obvious medical, practical, social, and economic challenges relocating to and re-establishing himself in another country.
If there was any real prospect of such an eventuality, this would attract some weight against exercising the discretion to refuse his Protection visa application.
Impact on Australian business interests
The parties agree this consideration is not presently relevant.
I am satisfied that this is correct.
Conclusion
Weighing all the relevant considerations, under s 7(2) of the Direction, the primary consideration in respect of protection of the Australian community is generally to be given greater weight than other primary considerations, and primary considerations should generally be given greater weight than other considerations. This aligns with the principle in s 5.2(2) that the safety of the Australian community is the highest priority of the Australian Government. Other considerations carry less weight than the primary considerations.
The task of balancing and weighing the relevant considerations is “to evaluate the different considerations in relation to each other in a balancing exercise in order to reach the ultimate conclusion”.[96]
[96] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [37].
MYLV’s conduct is very serious and the risk of harm to the Australian community should he engage in further criminal or serious conduct is real. The potential harm includes physical and psychological harm to individuals, including vulnerable people and public officials, as well as violation of people’s homes and property damage. There is a medium to high risk of MYLV engaging in such further conduct, especially if his past conduct, resuming abuse of alcohol or illicit drugs after promising not to do so, is repeated. Despite his contrary protestations and his plea for another chance, this weighs heavily in favour of exercising the discretion to refuse his Protection visa application.
Even though MYLV has a mental illness and the tolerance of the Australian community is increased as he has spent most of his life in Australia, I am satisfied the level of risk exceeds the threshold of tolerance. Nevertheless, under the present legal arrangements, refusing MYLV’s Protection visa application is unlikely to protect the safety of the Australian community as he will remain in the community. The possibility exists, albeit not supported by relevant probative material, that the instability or uncertainty of this arrangement might adversely affect MYLV’s equanimity and, perhaps, his mental state. The greatest protective factors arising from the relevant materials are his continued compliance with medical and anti-psychotic treatments, and his continued abstinence from polysubstance abuse and use of illicit substances, particularly methamphetamine, cannabis and heroin. To some degree, MYLV’s continued involvement with his church might assist. This reduces the weight of the protection consideration, but not greatly.
I am satisfied the protection considerations weighing heavily in favour of exercising the discretion to refuse MYLV’s Protection visa application outweigh all countervailing factors.
MYLV’s ties to Australia are characterised by members of his immediate family who are Australian citizens. He has only two elderly relatives in Vietnam, with whom he has little contact. Australia is the place where he has spent most of his life, having arrived at the age of 16 and never departed. Australia is his home. Nevertheless, there is only scant relevant evidence of any impact of the decision on his immediate family members, other than his mother, Mrs AB. Of all his family members, it is she who is likely to be most impacted by the decision, particularly if MYLV is ultimately removed to another country. Pending this, MYLV will remain in the Australian community and, subject to him complying with the conditions of his BR visa, this reduces the adverse impact Ms AB is likely to suffer should the discretion to refuse his Protection visa application be exercised. Nevertheless, Mrs AB is MYLV’s primary support provider. She is 70 years old and affected by osteoarthritis. She worries about who will support MYLV when she is less able to do so and he is unable to access support through the NDIS. This adds weight to the impact of the decision on Mrs AB.
This weighs heavily against refusing MYLV’s Protection visa application under s 501(1) of the Act.
The best interests of minor children who might be affected by the decision cannot be assessed in any detail due to the lack of relevant probative material. Consequently, this consideration does not tip the balance, one way or the other.
Consideration of Australian community expectations weighs in favour of refusing MYLV’s Protection visa application. The character concern is reinforced by MYLV’s previous recidivism and his repeated polysubstance abuse and use of illicit drugs, despite his repeated promises to refrain from doing so. The context of his mental illness does not greatly alleviate and in some regards might reinforce the weight of concern. The expectation a person who has engaged in criminal and serious conduct should not be allowed to remain in Australia does not sit easily or well with the present state of the law, under which MYLV will reside in the Australian community whether or not his Protection visa application is refused. Even though this state of affairs might affect the consideration of Australian community expectations, “as a norm”, the weight of the character concern remains albeit reduced somewhat by the increased tolerance which flows from the length of time MYLV has resided in Australia, since childhood. This consideration weighs moderately in favour of refusing MYLV’s Protection visa application.
The only other consideration that is relevant and of significance is the consideration of the legal consequences of the decision. To some extent, considerations relating to MYLV’s present visa status have arisen in the context of primary considerations relating to protection of the Australian community and Australian community expectations. The possible adverse effect of uncertainty about MYLV’s future in Australia on the risk of recidivism has reduced the weight of the protection concern, but not significantly. The fact that MYLV is likely to reside in the Australian community despite the ‘norm’ the Government expressed does not reduce the weight of the character concern in his case. I do not propose to weigh those matters again.
The legal consequences of the decision are that MYLV will reside in the Australian community for an indeterminate period, potentially for the rest of his life, under the restrictive conditions of his BR visa, including the spectre of mandatory imprisonment should any breach of those conditions be found, pending removal from Australia to another country. This uncertain state of affairs could have an effect on MYLV’s equanimity and, possibly, on the state of his mental health. While at the level of generality this might be accepted, there is insufficient relevant material of probative value to make further findings on this point. While it may be argued that an adverse visa decision might be expected to have such a consequence for any non-citizen who has committed crimes and who fails to pass the character test, and that such a person should bear the consequences of their actions, I am satisfied this consideration adds some weight against exercising the discretion to refuse MYLV’s Protection visa application.
This is a difficult case in which it is difficult to identify a satisfactory conclusion, one way or the other. On the one hand, the vicissitudes of MYLV’s mental illness and his history of trauma, fleeing from Vietnam, no doubt contributed to his polysubstance abuse and illicit drug use in Australia from a young age. He has resided in Australian since arriving as a 16 year old child. His immediate family members reside in Australia, and they are Australian citizens. A positive protection finding has been made and, under Australia’s non-refoulement obligations, MYLV cannot be returned to Vietnam. Under the existing policy, it is possible (but there is presently no real prospect) he might be removed to another country. Pending that, he is likely to reside in the Australian community. The uncertainty of his future in Australia might adversely impact his mental state and increase the risk of recidivism. On the other hand, MYLV fails to pass the character test. He has a substantial criminal record, and he has engaged in very serious conduct. Even though the pattern of his criminal conduct and convictions as an adult was broken for a time, he relapsed and engaged in further, more serious conduct. Despite some protective factors (most notably MYLV’s concern about being removed from Australia or returning to prison), there is a medium to high risk he might do so again and cause serious harm to individuals in the Australian community. His conduct has breached Australian community expectations a non-citizen should be law-abiding. This is not offset by the increased tolerance which stems from the length of time MYLV has resided in Australia.
Under the principle in s 5.2(2), the highest priority is the safety of the Australian community. It is the protection of the Australian community that weighs most heavily in the balance of relevant considerations. Weighing all the relevant considerations, the primary considerations relating to protection of the Australian community and Australian community expectations outweigh the strength and nature of MYLV’s ties to Australia. Other considerations relating to the legal consequences of the decision add weight against exercising the discretion to refuse MYLV’s Protection visa application, but this does not tip the balance decisively.
Overall, I am satisfied considerations weighing in favour of exercising the discretion under s 501(1) of the Act outweigh all other considerations. It is for this reason the decision to refuse MYLV’s Protection visa application is affirmed.
Dates of hearing: 31 January, 11 February and 12 February 2025 Solicitors for the Applicant: Mr A Mujtahedi, Immigration Advice and Rights Centre
Solicitors for the Respondent: Mr M Wong, HWL Ebsworth Lawyers
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