Ngo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Ngo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3923 (27 October 2021)
Division: GENERAL DIVISION
File Number: 2021/5407
Re:Thierry Ngo
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:27 October 2021
Place:Melbourne

The Tribunal decides, under section 43(1)(a) of the Administrative Appeals Tribunal Act1975, to affirm the decision under review.
........................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – where the applicant is a citizen of the French Republic - where the applicant’s visa has been mandatorily cancelled under Act for having a ‘substantial criminal record’ – where a delegate of the Minister refuses to exercise discretion to revoke mandatory cancellation – where applicant seeks review of delegate’s decision by Tribunal – where decision-makers must follow any ministerial direction issued under Act – where Minister has issued Direction No. 90 – primary considerations – other considerations – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975, s 33, 33A
Migration Act 1958, ss 499, 500, 501, 501CA
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Secondary Materials
Migration Act 1958 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (made 8 March 2021/commenced 15 April 2021)
A guide to the French healthcare system (accessed 22 October 2021)
REASONS FOR DECISION
Senior Member D. J. Morris
27 October 2021
PRELIMINARY

The Applicant in this matter is Mr Thierry Ngo. He has brought to the Tribunal an application for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’), who is the Respondent in this matter, which was made on 2 August 2021. The delegate was not satisfied that Mr Ngo passes the character test in the Migration Act 1958 (‘the Act’) and was also not satisfied that there is another reason why the original decision to cancel Mr Ngo’s visa should be revoked.
A hearing was held on 18 and 21 October 2021, by video link as permitted under section 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’), because of the current public health emergency. Mr Ngo spoke for himself, made submissions and gave evidence and was cross-examined by Mr Liam Dennis of Minter Ellison, representing the Respondent. Mr Ngo called two witnesses who gave evidence: Mr Duy Nguyen, his cousin; and Mr Jacques Ngo, his younger brother.
Evidence admitted
The following documents were received as evidence by the Tribunal:
(a)A volume of ‘G’ documents (‘GD’), submitted by the Minister (Exhibit R1);
(b)A statement of the Applicant lodged 13 October 2021 (Exhibit T1);
(c)Statement of Ms Karina Kopeikin with attachments, dated 26 September 2021 (Exhibit A1);
(d)Statement of Mr Duy Nguyen, dated 27 September 2021 (Exhibit A2); and
(e)Statement of Mr Jacques Ngo dated 25 September 2021 (Exhibit A3).
The Respondent also submitted a Statement of Facts, Issues and Contentions (‘SFIC’), which was taken into account.
LEGISLATIVE FRAMEWORK
What is the task before the Tribunal?
Section 500(1)(ba) of the Act says that a person may ask the Tribunal to review a decision not to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act. In this task, the Tribunal is not reviewing the decision of the delegate. The Tribunal is making a fresh decision based on the law and the information before it. In addition, both parties are entitled to make submissions and provide further information to the Tribunal as it conducts the review, including information that was not before the delegate.
Because section 500(1)(ba) refers to the power of review as relating to all of subsection 501CA(4), it is clear that two questions are potentially before the Tribunal. The first question that must be addressed in section 501CA(4)(b)(i): is whether Mr Ngo fails the character test in the Act. If it is found that he does not, then the cancellation of the visa is set aside, and that is the end of the matter.
If, however, the Tribunal finds that Mr Ngo does fail the character test, then there is a second question the Tribunal must consider – is there “another reason” (in terms of the wording in section 501CA(4)(b)(ii)) that the cancellation of his visa should be revoked.
The Tribunal must evaluate the factors for and against revocation. In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, the Federal Court said, at [38]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.
If the Tribunal, at the end of its consideration, considers that the discretion is enlivened that there is “another reason”, then it must revoke the mandatory cancellation of the visa.
It was agreed by the parties during a directions hearing, and confirmed during the substantive hearing, that the 84^thday in respect of this application is 28 October 2021. Pursuant to section 500(6L) of the Act, if the Tribunal has not made a decision on or before that day, the reviewable decision would be affirmed.
THE MANDATORY CANCELLATION OF THE VISA
Does the Applicant have a ‘substantial criminal record’?
On 2 April 2019, Mr Ngo was before Judge Soulio in the District Court of South Australia in relation to a breach of a three-year good behaviour bond entered into on 24 May 2018. This related to a suspended sentence of one year, four months and four days with a non-parole period of nine months for the offences of: possessing a firearm without a licence and possessing a prohibited weapon on 15 May 2017, and for breaching bail by testing positive to methylamphetamine on 5 January 2019 (GD, p 30). The suspension of the sentence was revoked.
The bond breach related to offences committed in the period from September to November 2018, namely the offence of: Serious criminal trespass (non-residential) basic offence and the offence of Dishonestly take property without consent (two counts); and Unlawful possession.
Before the Tribunal (GD, p 34) were sentencing remarks of His Honour Judge Millsteed of the District Court of South Australia, on 24 May 2018 in relation to four offences of which Mr Ngo had pleaded guilty in January 2018. The four offences were: Possession of a prescribed firearm without a licence; Failure to keep a prescribed firearm secure; Failure to keep ammunition secured; and Possession of a prohibited weapon. The Judge also referred to Mr Ngo pleading guilty to the offence of Failure to comply with a bail agreement.
Before the Tribunal (GD, p 39) were the sentencing remarks of His Honour Judge Chivell of the District Court of South Australia, in relation to guilty pleas entered by the Applicant to two sets of offences. The first was trafficking in methylamphetamine (two counts), with the offence committed on 31 August 2012. The second was trafficking in methylamphetamine (two counts) and trafficking in a drug commonly known as ‘fantasy’ (two counts), with the offences found to have occurred on 2 November 2012. In relation to the August 2012 offences, His Honour imposed a total sentence of 18 months. In relation to the November 2012 offences, the Judge imposed a total sentence of two years and three months. The offences were to be served cumulatively, making a total sentence of three years and nine months.
On the basis of these facts, I find that Mr Ngo does not pass the character test under section 501(3A)(a) of the Act through the operation of subsections (6)(a) and (7)(c). I am satisfied that he has a “substantial criminal record” because he has been sentenced to a term of full-time imprisonment for a period of 12 months or more. That satisfies the ‘first limb’ required for the mandatory cancellation of a visa under this section of the Act.
The South Australian Department for Correctional Services advised the Department for Home Affairs on 10 February 2020, that Mr Ngo was admitted to prison on 19 November 2018 and was at that time incarcerated with a conditional release date of 15 November 2019, with a current remand date of 21 February 2020 (GD, p 66).
I am therefore also satisfied that the Applicant was serving a sentence of imprisonment on a full-time basis at the time his visa was cancelled (section 501(3A)(b)), which satisfies the ‘second limb’ of the subsection.
Is there ‘another reason’ to revoke the mandatory cancellation of the visa?
The Ministerial Direction – Direction No. 90
Section 499 of the Act provides, that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2) of the Act, comply with a relevant direction. On 8 March 2021, the Minister made a direction under section 499; Direction No. 90 (hereafter referred to as ‘the Direction’) commenced on 15 April 2021.The Tribunal must have regard to the contents of the Direction in considering whether there is “another reason” to revoke the mandatory cancellation.
The Direction requires that some stipulated considerations must be taken into account, where they are relevant. However, the Direction does not contain the Tribunal’s task; it must look at any other relevant factor in the circumstances of the case.
ORAL EVIDENCE AT THE HEARING
The Applicant
Mr Ngo submitted a written statement dated 13 October 2021. He accepted the evidence relating to his Court appearance in April 2019, and his offending in May 2018. He also accepted a conviction for trafficking in October 2013.
Mr Ngo said that his offending has been linked to his drug use. When asked by Mr Dennis why the Tribunal should be satisfied that he will not re-offend, he said that he had learned his lesson. He said he has his family to take care of and that he had been stupid. Mr Ngo told the Tribunal he has not trafficked in drugs since 2012 and said, “I was supporting my habit, I was addicted to crystal meth.”
Mr Dennis referred to Judge Millsteed’s remarks in Court in May 2018 where His Honour said (GD, p 38): “It is important that you stay away from drugs”. Mr Ngo said he remembered the Judge saying that but agreed that he went on to commit further offences.
When asked what steps he had taken to rehabilitate, Mr Ngo said that he had done some courses while in immigration detention. When asked directly by the Tribunal whether he had undertaken any courses in prison, Mr Ngo responded: “They never asked me. I think I did ‘Living without violence’”. The Applicant did not remember whether he has undertaken any courses relating to drugs.
Mr Dennis took the Applicant to a print-out from the South Australian Department for Correctional Services of drug test results while Mr Ngo has been serving his prison sentences. The print-out records positive test results being returned on 2 March 2018, 12 February 2018, 19 January 2018, 5 January 2018, and 8 October 2014. The print-out records also showed the Applicant failing to attend a drug test on 4 July 2018 and refusing to provide a urine sample on 30 May 2018. The Applicant confirmed that he agreed with the evidence in the print-out.
Mr Dennis referred to Mr Ngo’s written statement in which he says he speaks “French, Vietnamese and English”, and the Applicant confirmed that was the case.
Mr Ngo said he worked for a major chicken processor for between three and four years and has also worked for a welding and forging company, at a butchery formerly owned by his older brother, in food production and in demolition work and scaffolding.
Mr Dennis asked the Applicant whether he was thinking about becoming a personal trainer, and Mr Ngo said: “I am thinking about it, yes”. Mr Dennis asked Mr Ngo whether he would agree with the proposition that he was a hard worker and good at finding work, and he concurred.
When asked about the remark in his written statement that he first became involved in drugs because of an emotional trigger, Mr Ngo said he agreed with that description. He said he is now a changed person. He said: “I haven’t done drugs since being in gaol. I don’t want to go back to drugs.”
When asked directly by the Tribunal what he planned to do if released into the community, Mr Ngo responded: “I want to make my family proud. Maybe join the army, become a fireman, personal trainer. I don’t want my daughter to grow up seeing me as a criminal.”
Mr Ngo agreed that he has two young daughters. The Tribunal will describe the older daughter, who was born in 2010 and is now aged 11, as ‘D1’ and the younger daughter, born in 2015 and now aged six, as ‘D2’.
Mr Dennis asked Mr Ngo whether D1 is in Malaysia. He responded: “Six years ago she was in Malaysia. I heard she has moved to Sydney”. When asked who had told him this, Mr Ngo said: “One of her mother’s friends”. He said he has no contact with D1 or her mother. When asked by Mr Dennis whether he does not perform a parental role, Mr Ngo said: “That’s true; her mother won’t let me”. Mr Ngo said he would like to be involved when D1 reaches the age of 18.
Mr Dennis noted that Mr Ngo’s brother, Mr Jacques Ngo, said in his statement that D1 was in Malaysia. Mr Ngo responded: “He doesn’t know. We don’t really know where she is.”
Mr Ngo said he had last seen D1 when she was aged “around three or four”.
In respect of his younger daughter, D2, Mr Ngo said he had a very good relationship with her. He said when she was born, he looked after her every day, and used to take her to the gym with him, and to the beach. Mr Ngo said that D2 now lives in Sydney.
Mr Dennis referred to the Personal Circumstances Form the Applicant had submitted to the Department in which he wrote: “Once a week contact with youngest prior to coming into prison”. Mr Ngo said that he might have seen D2 twice a week, but he could not remember. He said D2 visited him on two or three occasions when he was in prison but after visiting restrictions were imposed owing to the pandemic, she video-called him.
He said that since he has been in immigration detention, D2 speaks to him every day. He said that if he was returned to France, he would “of course” keep in contact with D2 through Face Time calls.
When asked by Mr Dennis whether D2 would visit him in France, Mr Ngo said he was not sure and he had not spoken to her mother about that possibility.
Mr Ngo said he had made financial contributions for the care of D2 but had not been able to while in prison; he did when he was working.
In the Personal Circumstances Form (GD, p 58), Mr Ngo identified one niece and two nephews who are minors, and he told the Tribunal that two more nephews have since been born in 2020. He then clarified that he is an uncle to six in total, one niece and five nephews, and he named them. Two boys are the children of his brother Pierre; one girl and one boy are the children of his sister Elise; and two boys are the sons of his brother Jacques.
Mr Ngo said he had not met the two youngest nephews because they had been born since he has been in custody but has met the others. He said: “I am pretty close with them. We go to birthdays and the cinema, and do uncle things.”
Mr Ngo said that he had no family in France. They had all migrated to Australia as a family unit.
In terms of his health, Mr Ngo said he was “pretty healthy”. He said he had a workplace accident while working as a scaffolder and injured his knee, requiring a repair to the anterior crucial ligament and then a subsequent operation on the same knee.
If his visa is restored and he returns to the community, Mr Ngo said that he is thinking of working with his brother who owns a Vietnamese restaurant in Adelaide. “If that doesn’t work, I have a few friends who will help me get back into construction.”
The Tribunal noted that Mr Ngo wrote in his Personal Circumstances Form that he was born in Grenoble, France, but in his written statement he said he was born in Vietnam but the family moved to France when he was “under one year old”. Mr Ngo said that the information in the form was wrong. He said that he lived in France until aged 16. He said he came to Australia with his parents and siblings, two of whom had been born while the family was residing in France.
The Tribunal noted that the Applicant did not include any details about his father in his Personal Circumstances Form. Mr Ngo said that was because he had not been “part of his life”. He confirmed that his father lives in Adelaide, but his parents had separated when he was young.
The Tribunal noted that one offence for which Mr Ngo had been convicted was possession of a laser pointer, which is a prohibited weapon. When asked why he had one. Mr Ngo said: “It was cheap. I bought it on the Internet. It looked cool. I didn’t know it was illegal”. He said he knew, now, why such items are illegal.
Mr Ngo told the Tribunal that he has a construction ‘white’ card, and a scaffolding licence. He said he had qualified for a forklift licence but believed it was no longer current and would need to be renewed. He said he had a driver licence but it has also expired and would need to be renewed.
The Tribunal directly asked Mr Ngo whether he had been able to play sport while in prison or detention. He said that he could not because of his knee condition, because if playing, for example soccer, a quick change of direction would affect the repaired joint. He said that he had nonetheless tried to improve the strength of his knee by running on a treadmill and estimated he had run 400 kilometres in the last month, averaging around 20 kilometres a day.
Mr Ngo said he was able to use a computer. He said he speaks to his family around three to four times a week.
Mr Duy Nguyen
Mr Nguyen adopted his statement dated 27 September 2021 (Exhibit A2). He said growing up he had a close relationship with the Applicant, that they used to see each other often and he would confide in Mr Ngo and ask his advice. Mr Nguyen said he had seen him as a role model.
Mr Dennis asked Mr Nguyen whether he was familiar with the Applicant’s record of offending. Mr Nguyen said that he was, although much of it occurred when he was younger. He knew the offending involved trafficking and firearms possession and trespassing.
Mr Nguyen was asked what he meant in his statement about Mr Ngo making huge progress to leave his addiction behind. He responded:
I have seen it with his mentality. He has turned his mind around. He is remorseful and repentant. He talks of the future. There has been a drastic change. He wants to mend relationships with other family members and has a strong motivation to combat his addictions.
Mr Nguyen said that, formerly, Mr Ngo had been unmotivated and driven just to feed his addiction. He said: “He is now talking about what he wants to do. He used to be unfit and overweight and was not focussed.”
Mr Nguyen said that Mr Ngo “used to say it was bad I got caught. Now he says, I shouldn’t have done that. He blames himself and acknowledges what he has done.”
Mr Dennis asked when he began to notice a change in Mr Ngo. Mr Nguyen responded: “When the Minister first gave him a notice to revoke his visa. I noticed in the past year he has made peace with himself, but I couldn’t pinpoint an exact time.”

Mr Nguyen said that Mr Ngo’s addiction caused him to make “terrible decisions. Every wrong turn was due to drug taking. He now understands the repercussions. His grandmother is elderly. He might not see her again or be able to hug his Mum and Dad.”
Mr Dennis asked Mr Nguyen whether it is fair to say that Mr Ngo’s addiction is a constant battle, which he agreed with. Mr Nguyen said he believed the Applicant needs a family support structure around him and that going back to France would contribute to “flaring up the addiction.”
Mr Nguyen said that he had kept in touch with Mr Ngo by letters and phone calls since he has been in prison and detention. He said he tried to organise a visit but was thwarted by restrictions imposed in response to Covid-19. In addition, he was working full-time and was studying at the time.
Mr Jacques Ngo
Mr Jacques Ngo adopted his written statement dated 21 September 2021 (Exhibit A3).
Mr Jacques Ngo said that, before he went to prison, the Applicant would visit him around twice a week: “He would come to my house and train me. He would see my two sons. Sometimes he would bring his daughter around.”
Mr Jacques Ngo said that he considered his brother would bring a loving influence on his children. He said he was not concerned, in this context, about the Applicant’s criminal history.
Mr Jacques Ngo said: “The whole family is in Australia. It is a big family and could support him. Before, when he was addicted, we hardly saw him.”
Mr Ngo said he did not think the Applicant would relapse because “he will go to counselling and stay with his family. I think he has learnt his lesson.”
Mr Jacques Ngo said he was generally aware that the Applicant had undertaken a rehabilitative course in prison.
Mr Ngo said that he was born in France and came to Australia in 2001 but has not been back to France since and did not have any connexions there.
Mr Jacques Ngo said that he understood that the Applicant’s older daughter, D1, was still living in Malaysia; he had not heard that she had moved back to Australia.
The Tribunal directly asked the witness about his reference to the Applicant bringing his daughter, D2, around to Mr Jacques Ngo’s house. He said that D2 moved with her mother to Sydney about two years ago because the mother wanted to live with her own father, D2’s grandfather.
Mr Jacques Ngo confirmed the contents of his statement that the Applicant had originally got him a job with a major food processor and that he continued to work there, 13 years on, and was now a manager.
APPLICANT’S CLOSING SUBMISSION (DAY ONE OF THE HEARING)
Mr Ngo said that he wanted to put his past behind him. He said that he wanted to prove he can change and wanted to be here for his two daughters, his niece, his nephews, his parents and his grandmother. He said he wants a second chance.
DAY TWO OF THE HEARING
Evidence admitted
The Tribunal admitted into evidence the following documents:
(a)Statement of Mrs Elise Tyler dated 26 September 2021 (Exhibit A4);
(b)Applicant’s ‘Dealing with anger’ course certificate, dated 28 May 2021 (Exhibit A5);
(c)Applicant’s IHMS ‘Liver health’ certificate, dated 30 June 2021 (Exhibit A6);
(d)Applicant’s NAIDOC Art Competition first place winner, dated 3 August 2021 (Exhibit A7);
(e)Photograph of Applicant with artwork, lodged 13 October 2021 (Exhibit A8);
(f)Photograph A – Family gathering 1, lodged 29 September 2021 (Exhibit A9);
(g)Photograph B – Applicant’s daughter with cousins, lodged 29 September 2021 (Exhibit A10);
(h)Photograph C – Applicant’s grandmother and cousin, lodged 29 September 2021 (Exhibit A11);
(i)Photograph D – Family gathering 2, lodged 29 September 2021 (Exhibit A12);
(j)Photograph E – Applicant’s daughter and nephew, lodged 29 September 2021 (Exhibit A13);
(k)Photograph F – Family gathering 3, lodged 29 September 2021 (Exhibit A14);
(l)Photograph G – Applicant and daughter on a video call, lodged 13 October 2021 (Exhibit A15);
(m)Photograph H – Applicant and daughter, lodged 13 October 2021 (Exhibit A16);
(n)Photograph I – Applicant’s brother and brother-in-law and children, lodged 13 October 2021 (Exhibit A17);
(o)Photograph J – Applicant’s daughter and her cousin 1, lodged 13 October 2021 (Exhibit A18);
(p)Photograph K – Applicant’s daughter, lodged 13 October 2021 (Exhibit A19);
(q)Photograph L – Applicant’s daughter and her cousin 2, lodged 13 October 2021 (Exhibit A20);
(r)Photograph M – Applicant’s daughter with two cousins, lodged 13 October 2021 (Exhibit A21);
(s)Photograph N – Applicant’s daughter in a park, lodged 13 October 2021 (Exhibit A22);
(t)Photograph O – Applicant’s daughter, lodged 13 October 2021 (Exhibit A23);
(u)Photograph P – Applicant’s nephew 1, lodged 13 October 2021 (Exhibit A24);
(v)Photograph Q – Applicant’s nephew 2, lodged 13 October 2021 (Exhibit A25);
(w)Photograph R – Applicant’s mother and daughter, lodged 13 October 2021 (Exhibit A26); and
(x)Photograph S – Applicant’s sister and children, lodged 13 October 2021 (Exhibit A27).
The Applicant (further examination)
Mr Dennis asked the Applicant about the IHMS certificate for a course in ‘Liver health’. Mr Ngo said he attended a course with other detainees and they asked for a certificate, which was provided. He said that he estimated that there were “three or four” sessions in total. In relation to the session relating to Liver health, he said the session related to how the liver is affected by drug and alcohol use.
Mr Ngo said he did not have any problem with alcohol use, but the course also discussed the effect of other drugs, such as crystal methamphetamine and heroin.
Mr Dennis asked Mr Ngo about the ‘Dealing with anger’ certificate and asked why the Applicant had attended this course. He said: “The course also dealt with violence. To be honest, I just wanted to join others talking about how to deal with violence and anger.”
Mr Dennis asked whether the Applicant had any issues with violence or anger. Mr Ngo responded: “I’ve had no issues with that. I have never been violent.”
Mr Ngo said the courses had been useful in learning how to control violence and why people take drugs. He said one of the courses, the first session, dealt with addiction, but he was not given a certificate for that session.
Mr Dennis said that the Applicant had told the Tribunal he would have a battle with addiction “for the rest of his life” and asked why he said that. Mr Ngo responded:
First of all, I will say that there will be a lot of people out there doing drugs. The first thing I will do is avoid drugs and stay close with my family. I have been offered drugs in prison and have refused them, and all my recent drug tests have been negative.
Mr Dennis said that the Applicant had said he would engage with a psychologist and counselling if released into the community and asked why he had not engaged in rehabilitative programmes in the past. Mr Ngo said: “Because I was under the influence of drugs”. He agreed he had not actively participated in rehabilitative programmes in the past.
The Tribunal referred the Applicant to remarks of Judge Chivell (GD, p 40) in which His Honour referred to Mr Ngo talking to the prison chaplain and possibly engaging with Narcotics Anonymous, when released, and asked if he did so. Mr Ngo responded: “I can’t remember. I think I do remember going to places which dealt with that and gambling addiction as well.”
The Tribunal asked the Applicant if he felt he had a gambling problem. Mr Ngo responded: “Yes and no.”
Mr Dennis asked Mr Ngo what he thought would happen if he is released into the community and faces further challenges in life, such as he had outlined in the past with his knee injury and problems with his relationship. Mr Ngo responded: “If that happens again, drugs is not something I will do. In 2018 I was homeless. The mother of my child [D2] was seeing another man. I had injuries. I didn’t know what to do.”
Mr Ngo agreed that his daughter was born in 2015 and accepted Mr Dennis’s suggestion that her birth did not prevent him committing further offences. He agreed that his sobriety (from drugs) has not been tested in the community.
In respect of his historical knee injury, Mr Dennis asked Mr Ngo if further surgery was planned. He responded:
I talked to the doctor about five months ago and he said there was trouble with the side ligaments and told me I would need surgery, but I didn’t want to do it yet. I also have to have surgery for a lump on my chest below my nipple.
Mr Ngo said he had an x-ray and an ultrasound and had been told he needs to have an operation to attend to the chest lump, which he thought might be a gland problem.
FURTHER ORAL SUBMISSION OF THE APPLICANT
Mr Ngo said that he acknowledges the positive drug tests he has returned, but said he was battling addiction at the time and it should be noted that he has remained sober from drugs since 2018, in spite of being offered drugs in prison. He said it should also be noted (GD, p 71) that he has returned many more negative tests than positive ones.
He said: “I know it is a battle. It is a fight that I have been winning. I plan to seek further assistance from a psychologist and counselling if released.”
Mr Ngo said that the positive drug tests should be viewed in the context of challenges he had at the time. He said his daughter was born in 2015 and then he had a workplace accident and had to undergo surgery and then found out that the mother of his younger daughter was seeing other people.
Mr Ngo said the Respondent had submitted that he was healthy and would have no problem looking for work if returned to France. The Applicant said that it was an accident at work that had caused him to leave the workplace. He said he had not been back to France since aged 16. He said he was in the care of local doctors, in relation to his medical matters.
Mr Ngo acknowledged that he is able to speak French. He said it should be remembered that the trade qualifications he holds are only valid in Australia, and that he hoped to be employed in his brother’s restaurant.
Mr Ngo said that the Respondent had said he would have no difficulty contacting his daughter, D2, electronically if returned. He said he acknowledges technology has improved but he could not walk his daughter down the aisle or hug her or be there when she cries; he would only see her on a screen.
Mr Ngo acknowledges that he has a criminal history and fell in with the wrong crowd. He said that because of his addiction he has made mistakes. He said he has now cut ties with former associates and negative influences.
Mr Ngo said that the only people who matter in his life are his daughter and his family. He said he was determined not to re-offend: “I have lost the best years of my life in gaol and in the grip of my addiction.”
APPLICATION OF THE DIRECTION
Paragraph 5.2 of the Direction sets out principles which provide the framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation of a visa under section 501CA of the Act. The principles 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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Direction also provides (Part 2, paragraph 7) that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.
Part 8 of the Direction relevantly provides that, in making a decision under section 501CA of the Act, 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 best interests of minor children in Australia; and
(4) Expectations of the Australian community.
Part 9 of the Direction provides that, where relevant, other considerations must also be taken into account. These considerations include, but are not limited to:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including:
(i)strength, nature, and duration of ties to Australia; and
(ii)impact on Australian business interests.
The wording in paragraph 9(1) of the Direction makes clear that the other considerations include those stipulated in the Direction, but a decision-maker is not confined only to those. This means that if there is another fairly put claim that something is relevant in the particular circumstances, and the claim relates to a matter that is consistent with the purposes of the Act, that claim should be properly addressed. Any such claim must be material to the matter being considered, which is the exercise of a discretionary power under the Act.
PRIMARY CONSIDERATIONS
Protection of the Australian community (paragraph 8.1)
The Tribunal should consider the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct (paragraph 8.1.1)
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence. There is no evidence that the offending of the Applicant falls within these categories.
Offending history
Before the Tribunal was an Australian Criminal Intelligence Commission nationally coordinated criminal history check dated 3 February 2021 (‘ACIC report’) (GD, pp 28-29). The ACIC report records Court appearances by a person including outcomes, bonds or other Court orders, traffic offences and findings of guilt with no conviction.
The ACIC report has Mr Ngo’s first appearance at a Court, Port Adelaide Magistrates’ Court, in April 2008. On that occasion, he was convicted of driving an unregistered motor vehicle on a road and fined $200.
In February 2009, Mr Ngo was before Elizabeth Magistrates’ Court and Estreatment of bail was found proven and the estreatment was $1,000. (Estreatment is an order when a bail condition is breached that a person forfeits an amount stipulated in the bail agreement). The ACIC report is deficient in not recording what this estreatment relates to.
Later in February 2009, Mr Ngo was before Port Adelaide Magistrates’ Court and convicted of Fail to comply with bail agreement and fined $500.
In June and October 2009, the Applicant was before Elizabeth Magistrates’ Court and two estreatment orders were found proven and he was fined $1,000 in each case.
In November 2012, Mr Ngo was before Holden Hill Magistrates’ Court and convicted of Fail to comply with bail agreement. He was discharged without penalty.
In June 2013, at Adelaide Magistrates’ Court, the Applicant was convicted of 10 counts of Fail to comply with bail agreement and fined $300 in total.
In October 2013, at the District Court of South Australia, as mentioned above, Mr Ngo was convicted of the offence of Traffic (type unknown) in a controlled drug – basic (four counts); Traffic (type unknown) in a controlled drug – aggravated (two counts). He was sentenced to imprisonment for three years and nine months, with a non-parole period of one year and ten months.
Also in October 2013, at Port Adelaide Magistrates’ Court, Mr Ngo was convicted of the offence of Contravene defect notice code of practice, and discharged without penalty; Unlawful possession (7 days’ imprisonment); Possess prescription drug (not being drug of dependence); Possess controlled drug (not cannabis); Resist police; Fail to comply with bail agreement (three counts). He received a suspended sentence in relation to this latter group of offences and a $200 bond for 12 months.
In December 2013, at Christies Beach Magistrates’ Court, the Applicant was convicted of the following traffic offences: Fail to drive to left of central island on roundabout; Duty to hold licence or learner’s permit; Fail to stop before reaching stop line at red traffic light; Drive in reckless or dangerous manner (five months’ imprisonment); Drive dangerously to escape police pursuit – basic offence; Exceed speed limit by 30 km/hr or more but less than 45 km/hr. He was also fined $400 and disqualified from holding a driver licence for two years.
In February 2014, at Port Adelaide Magistrates’ Court, Mr Ngo was convicted of the offences of Unlawful possession; Fail to comply with bail agreement; Resist police. He was discharged without penalty and a firearm disqualification order was made.
In April 2018, Mr Ngo was again before Port Adelaide Magistrates’ Court and convicted of the offence of Fail to comply with bail agreement and discharged without penalty.
The “2018 offences”
In May 2018, at the District Court of South Australia, the Applicant was convicted of the offence of Non-aggravated offence – possess firearm without licence. For this offence he was sentenced to 12 months’ imprisonment and a firearm disqualification order was imposed. He was also convicted of the offence of Use of/have possession of a prohibited weapon. For this offence he was sentenced to two months and 10 days in prison, to be served cumulatively. He was further convicted of the offence of Fail to comply with bail agreement. For this last offence he was sentenced to one month and 24 days in prison to be served cumulatively. The head sentence was 16 months and 4 days with a non-parole period of nine months. The sentence was suspended and a $1,000 bond imposed to be of good behaviour for three years with conditions and two years of supervision. On the same day, Mr Ngo was convicted of the offences of Fail to comply with regulations – fail to store ammunition separately from firearms; Fail to comply with regulations – fail to keep prescribed firearm secured. No further penalty was imposed.

In November 2018, at Port Adelaide Magistrates’ Court, Mr Ngo was convicted of the offence of Possess controlled drug (not cannabis) and discharged without penalty.
As set out above, in April 2019 Mr Ngo was before the District Court of South Australia. He was found to have breached the bond imposed by the Court in May 2018 and the suspension of the sentence then imposed was revoked. He was further convicted of the offences: Serious criminal trespass (non-residential) basic offence; Basic offence – dishonestly take property without consent (two counts); For these offences he was sentenced to nine months’ imprisonment, to be served cumulatively. He was further convicted of Basic offence – dishonestly take property without consent, for which he was sentenced to three months and 19 days, to be served cumulatively. He was convicted of the offences of: Use of/have possession of a prohibited weapon; Possess prescription drug (not being a drug of dependence). For these last two offences he was sentenced to three weeks and one day imprisonment, to be served cumulatively. The head sentence was declared by the Court to be two years five months two weeks and three days. A non-parole period for one year from 16 November 2018 was imposed.
Later in April 2019, at Port Adelaide Magistrates’ Court, Mr Ngo was convicted of the offence of Possess prescription drug (not being a drug of dependence) and discharged without penalty.
The “2017 offences”
When delivering his sentencing remarks in the District Court in May 2018, His Honour Judge Milsteed referred to events in May 2017 (GD, pp 34-35):
The circumstances of your offending can be briefly stated. At approximately 1.10 p.m. on 15 May 2017 police attended your home at [redacted] for the purposes of conducting a search of those premises. You were in the rear yard of the premises when they arrived. The police located in your bedroom a sawn-off Remington self-loading shotgun and a quantity of shotgun cartridges. The shotgun was secreted in a guitar case inside your wardrobe. Ninety shotgun cartridges were found under your bed and a single shotgun cartridge was located in a drawer. The police also located a butterfly knife.
The barrel of the shotgun had been cut down and, accordingly, constituted a prescribed firearm for the purposes of the Firearms Act. The weapon had all of its working parts but was in a poor condition and inoperable. Police checks revealed that it had been stolen and that you did not have a firearms licence.
By reason of the circumstance that I have summarised, you committed the offences of possession of a prescribed firearm without a licence, failure to keep a prescribed firearm secure, and failure to keep ammunition secured. The charge of possessing a prohibited weapon relates to the butterfly knife.
The Judge accepted statements Mr Ngo had made to the police that the firearm and ammunition had been received from him about a month before from a friend because the friend did not want to have the items in his car. His Honour said that despite some reservations he was prepared to accept that the firearm and ammunition had been left at Mr Ngo’s house by this friend, but he did not accept that the Applicant did not know, believe or suspect that the firearm was to be used, or had been used, for criminal purposes.
His Honour Judge Soulio described the April 2018 offences (GD, p 31):
In respect of the April 2018 offending, for which I must sentence you, on 29 April 2018 you were a passenger in a car pulled over by police. Police searched your satchel which contained a glass ice pipe and a laser pointer device, which is a prohibited weapon, and ephedrine, a drug for which you did not have a relevant prescription. You said you had purchased the laser device for $2 and considered it to be a toy.
I turn to the breaching offences. You committed an offence of theft between 29 September and 17 October 2019. You purchased a BMW motor vehicle which you had assumed was stolen. You intended to on-sell the car.
Then between 31 October and 3 November 2018 you entered the premises of a club at Cadell in the company of others. You were under the influence of drugs. You were intending to steal cash from a safe. In fact, you stole a high-vis vest.
Paragraph 8.1.1(1)(b) of the Direction states that the following categories of offending are considered by the Australian Government and the Australian community to be serious. This is a declaratory, or deeming, statement. The categories include causing a person to enter into, or be a party to, a forced marriage; crimes committed against vulnerable members of the community, such as the elderly and disabled, or government representatives performing their duties as such, and any crime in immigration detention. The only category of offending in this particular group which would appear to be relevant to Mr Ngo are his two convictions for resisting police and possibly his offence for driving dangerously to avoid police pursuit, because the latter offence self-evidently involves potential risk to the police officers involved.
The “2012 offences”
Before the Tribunal were the remarks of Judge Chivell in the District Court on 24 October 2013 (GD, pp 39-40). His Honour outlined the two sets of offences to which Mr Ngo had pleaded guilty.
Firstly, on 31 August 2012 you trafficked in methylamphetamine. There are two counts on that information.
On that day the police had stopped another man, who was in possession of methylamphetamine. He had 0.49 of a gram of the powder containing methylamphetamine in a Red Bull can. You had sold him that drug.
The police attended your house and found a plastic bag containing another 1.71 grams of white powder containing methylamphetamine, together with some other prescription drugs, including sildenafil citrate, which is Viagra; alprazolam, also known as Zanax, which is medication for anxiety; and dimethyl sulfone, which is a chemical used as a cutting agent in the sale of methylamphetamine.
Secondly, on 2 November 2012, while you were on bail for the August offences, you trafficked in methylamphetamine and a drug commonly known as fantasy. Again, there are two counts on that information.
On that day you were apprehended in relation to an unrelated matter involving the driving of a motor vehicle. When you were arrested, it was discovered that in your pocket you had 10.6 g of powder which, when analysed, contained 7.03 g of pure methylamphetamine. In the other pocket were $1,300 in $50 notes, a set of electronic scales and an ice pipe. In the car was a container which contained 6 g of a liquid which was 1,4 butanediol, commonly known as fantasy.
The evidence before me is that methylamphetamine such as this, which is 80% pure, can sell for between $400 and $900 a gram. That means that the methylamphetamine in your pocket on 2 November was worth between $4,000 and $9,000. The methylamphetamine you trafficked in August 2012 was worth between $880 and $$1,.980. The fantasy was worth much less, probably only $40 or so.
The maximum penalty for each of these offences is imprisonment for up to 10 years or a fine of up to $50,000 or both.
I accept that you would have used some of the methylamphetamine in your possession personally. However, you pleaded guilty to trafficking, which carries with it an admission that you would have sold at least some of it to others. I accept that at the time you were addicted to methylamphetamine, but that does not excuse your resort to trafficking in order to finance your habit.
When Mr Dennis put the May 2017, April 2018 and 2012 offences to Mr Ngo, he agreed that these were fair summaries.
What is deeply regrettable about the Applicant’s offending is that, having received a hefty prison sentence of three years and nine months in 2013 for these trafficking offences, he nonetheless continued to offend, including in terms of firearms, relatively serious traffic offences, property offences involving buying a car known to be stolen, with the intention of selling that vehicle on, and drug possession offences. It is acknowledged that he did not apparently continue to involve himself in trafficking, but he did expand his criminal activity into more general offending.
As the Judge did, the Tribunal accepts that part of the motivation for Mr Ngo’s offending was his addiction to methylamphetamine, but that does not reduce his culpability in terms of involving himself in trafficking. The possession of electronic scales and a significant amount of cash when stopped by the police indicate his activity in that regard.
The effect of drug trafficking on the Australian community is malign. It perpetuates misery and preys on the vulnerability of persons who are addicted, or on the road to becoming addicted. Apart from the personal effect on people, it contributes to a large number of admissions to our public hospitals and mental health institutions, to instances of domestic violence, to property offences in order to fund a drug habit, and to danger to the travelling public by people who are drug-driving. The Tribunal makes a clear distinction between drug possession and drug trafficking and finds the latter a particularly serious form of offending.
In respect of the firearms offences, the Tribunal accepts that this was at the lower end of the scale because, on the evidence of the Judge’s remarks, the sawn-off shotgun was not serviceable. However, the Applicant had agreed to hide this weapon in his house, secreted in a guitar case, and he clearly would have known, as the Judge concluded, that it either had been used for an illegal purpose or was likely to have been.
In respect of the laser pointer, the Parliament has decided that such an item is a prohibited weapon because of the dangerous use to which such a device can be put in regard to civil aviation and, for that matter, motorists on our public roads.
Mr Ngo has received several substantive prison sentences amounting to around eight years. He has also received suspended or part-suspended sentences. A custodial sentence is the ultimate tool in the range of sanctions available to judicial officers and it is exercised when either other measures have not had an effect or because of the magnitude of the particular conviction.
The Tribunal also notes the number of times that the Applicant has breached bail conditions, or bonds or other orders imposed by the Courts, including offending when he is subject to bail conditions. This is a particular pattern through his criminal history. He has also had a suspended sentence made substantive, because of his non-compliance.
Mr Ngo submitted that he has not been a violent offender. That is accepted, based on his criminal history check. However, offending does not have to be violent for it to have a significantly damaging effect on a community, and drug trafficking squarely falls into that category. It exploits the weakness of others and leads to other offending, as is illustrated in the Applicant’s offending history set out above. Some of this was to fund his habit, but not all. It disturbed the Tribunal that, when asked the reason for his offending, Mr Ngo asserted it was because he was ‘on drugs’, but offered little else by way of explanation or remorse.
The Tribunal finds that Mr Ngo’s offending has been serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
The Direction requires the Tribunal to consider both the nature of harm should the Applicant engage in further criminal or other serious conduct and the likelihood of him so engaging.
The Applicant was relatively vague about what courses he has undertaken either in custody or while under bail or bond conditions, in order to rehabilitate him. When asked directly about Judge Chivell’s 2013 remark that Mr Ngo might engage with Narcotics Anonymous on release, Mr Ngo said he could not remember, but thought he might have attended one meeting. He did present two certificates about short sessions he has undertaken very recently in detention, but there was no evidence of any other rehabilitative courses done in prison or in the community.
It is notable, as set out above, that Mr Ngo, while on bail for offences in August 2012, trafficked in drugs in November of that year. When he entered into a three-year good behaviour bond in May 2018 in relation to the firearms offences and for breaching bail by testing positive to methylamphetamine in January 2018, he then offended again in the period between September and November 2018.
It would seem to me that Mr Ngo has been extended leniency by the Courts in several occasions in relation to breaches of bail and bonds, and sometimes has been convicted but discharged without penalty. He then has gone on to re-offend. The Respondent submitted that there has been a frequency of offending. The Tribunal largely accepts that submission, while noting that there have been some periods of no offending, only for it to resume.
The Respondent also submitted that there has been an escalation of seriousness in Mr Ngo’s offending. While the 2013 sentence in relating to trafficking was the longest prison sentence the Applicant has received, he has received subsequent prison sentences including one which was made substantive after being initially suspended, because of the Applicant’s further offending. In terms of non-compliance with orders of the Court, the Tribunal agrees that there has been an escalation of seriousness. In terms of the nature of the offending, the Tribunal does not conclude that there has been an escalation but does find there has been a continuum of criminal conduct.
In terms of rehabilitation, the Applicant was somewhat vague in what he told the Tribunal. He said that he thought he might have done a course while in prison. There is evidence of Mr Ngo working in the prison bakery and being generally polite and well-behaved while in gaol. There is no evidence before the Tribunal of any adverse conduct since he has been in immigration detention. The positive drug tests while in custody in 2014 and, more particularly, in 2018, as referred to earlier in these reasons, are some cause for concern, but these seem isolated and there is no evidence of subsequent positive tests. I do note that Mr Ngo accepted that, while he has abstained from drugs, this has been in the protective environment of prison and then detention, and this resolve has not been tested in the community.
Overall, I consider that there remains a real risk of Mr Ngo re-offending in a general sense, if not necessarily re-engaging in drug trafficking. He did not seem to me to have a settled plan for either his future employment or for taking positive steps to guard against falling back into criminal conduct.
This primary consideration weighs relatively heavily against revoking the mandatory cancellation of the visa.
Family violence committed by the non-citizen (paragraph 8.2)
Paragraph 8.2 states:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen…
(2) This consideration is relevant in circumstances where:
(a)A non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)There is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
There was no evidence in the ACIC report (GD, pp 28-29) that Mr Ngo has been convicted of any offence that would fall into the category of family violence, nor was there any other evidence in the material submitted by the Minister that this consideration was relevant.
The Tribunal finds that this consideration is not engaged, so therefore weighs neutrally.
Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Tribunal is required to make a determination regarding the best interests of any relevant minor children who may be affected by the decision. The Direction requires the Tribunal to make separate determinations about relevant minor children where there is evidence that their interests might differ.
Mr Ngo has two minor children, his daughters D1 and D2. He submitted to the Tribunal that he had heard from a friend of his former partner that she and D1 had moved back to Australia from Malaysia. When his brother, who had mentioned in his written statement that D1 had moved to Malaysia, was asked about this, he said he had not heard about this move. Mr Ngo did not give any details and appeared to retreat when questioned by suggesting that he did not really know where D1 was.
The Tribunal does not accept that there is any clear evidence of D1 being in Australia. If, however, the Tribunal is wrong, the Tribunal finds that paragraph 8.3.(4)(a) of the Direction is relevant in relation to D1. In her case, Mr Ngo has had long periods of absence from her life. He told the Tribunal that he last saw her when she was aged ‘three or four’, and agreed that he had not been able to play even a remote parental role because, as he put it, her mother would not permit him to. He expressed the view that he would like to make contact with her when she turns 18. The Tribunal interprets that to mean, when D1 is an independent adult.
In terms of his younger daughter D2, the Tribunal accepts the evidence that Mr Ngo has been more involved in her life and remains in contact. Mr Jacques Ngo referred to D2 visiting his house with the Applicant when she was younger, before she moved with her mother to Sydney. The Applicant referred to him keeping in touch with D2 by video and phone calls on a regular basis, and to her visiting him in gaol before visiting was stopped because of the pandemic.
D2’s mother, Ms Kopeikin, relevantly wrote on 26 September 2021 that she lives in New South Wales and then stated (Exhibit A1):
I am writing to you in [regard] to Thierry’s permanent visa not being revoked as it will affect D2’s life possibly in a negative way. It will be difficult for D2 to have a relationship with her father (Thierry Ngo) if he is deported to France. Thierry will not be able to communicate easily with D2 and D2 will not be able to easily communicate with her father. In conclusion I think it is in D2’s best interest to have her father in Australia.
For completeness, the Tribunal notes that Ms Kopeikin has two older daughters from an earlier relationship, but they were not mentioned by the Applicant and their ages are unknown in terms of whether they would fall into the category contemplated by this primary consideration. The Applicant’s sister, Mrs Tyler, in her written statement (Exhibit A4) said that Mr Ngo was supportive of his then partner in her bringing up of her two older daughters. In any event, there was no further evidence of any relationship Mr Ngo might now have with these two persons.
Determination – D1
D1 has no contact, on the evidence, with her father, and has not done for approximately eight years. While Mr Ngo is, ipso facto, her parent, he has not played a parental role in her life since around 2003. The Tribunal interprets the phrase ‘parental role’ in the context of the Direction as being more than the biological fact of being the father or mother of a minor child, it means facilitating, and being regularly involved in, the upbringing of a child. This means providing – or contributing to – the range of care, protection, succour, nurturing, education, financial and practical supports for that child that a parent would ordinarily give.
The Tribunal makes a determination that, in relation to the Applicant’s eldest daughter, D1, if she is in Australia, her best interests will not be affected by the removal of the Applicant from Australia.
Determination – D2

There was evidence before the Tribunal that the Applicant has regular contact with D2 and, in response to a question from Mr Dennis, that when he was employed, he provided financial support to her mother for D2’s care. While the Applicant did not express an intention to live with D2 if released into the community and noting that D2 now lives in Sydney rather than Adelaide, which is where Mr Ngo would be likely to reside, the Tribunal accepts that there remains a relationship between Mr Ngo and his younger daughter and that it is a positive one.
While D2’s mother plays the primary parental role in the life of D2, the Tribunal accepts that Mr Ngo plays a parental role and would be able to play a more active one if gainfully employed in the Australian community. I note that Mr Ngo said he planned to reside in Adelaide if released into the community and D2 is in New South Wales, so there would remain some geographic separation.
The Tribunal accepts the distinction that Mr Ngo put in response to the proposition that, as he is currently in contact with D2 electronically, by phone and video-call, that could continue if he was in France. I agree with the Applicant that electronic contact between a parent and child is no substitute for personal contact, particularly when a parent knows that he or she has been permanently excluded from the country where their child resides.
I accept D2’s mother’s suggestion in her letter that it will not be as ‘easy’ for Mr Ngo to communicate with his daughter from abroad. However, I note that if he was to stay in Australia, the Applicant would be living in another State from D2 and his contact with her would generally also be by telephonic and electronic means.
In relation to the Applicant’s younger daughter, D2, the Tribunal makes a determination that it is in her best interests that mandatory cancellation of Mr Ngo’s visa be revoked.
Determination – Minor niece and nephews
As mentioned above, the Applicant has one minor niece and five minor nephews. He has had contact with all except the two youngest, who have been born since he has been in custody. The evidence of Mr Jacques Ngo was that the Applicant previously played a loving avuncular role in respect of these nieces and nephews. Mr Ngo agreed that their respective parents fulfil the parental role in their lives. However, the Tribunal accepts that the older ones, in particular, would be disappointed if their uncle was returned to France. There is no evidence of any offending which has affected them detrimentally.
The Tribunal determines that their interests favour revocation of the mandatory cancellation of the visa, but the weight in respect of this group is not heavy, because of the nature of the relationship.
Finding
Overall, the Tribunal finds that this primary consideration weighs relatively heavily in favour of revoking the mandatory cancellation of the visa.
Expectations of the Australian Community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction states:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia, of the following kind:
…
The Direction then goes on to list specific sorts of conduct, only one of which is explicitly relevant to Mr Ngo’s criminal history. Paragraph 8.4(2)(d) refers to commission of crimes against government representatives or officials due to the positions they hold, or in the performance of their duties. The two convictions for resisting police would fall into this category.
As the Direction says, the expectation of the Australian community is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A previous version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’).
The Court held that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are ‘deemed’; they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may seek to derive by some other assessment or process of evaluation. Direction No. 90, issued after FYBR, imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which is an acknowledgement of the approach taken by the plurality of the Court in FYBR.
Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant, the relative weight will be affected by the circumstances in the individual case, including the seriousness of the offending or other conduct.
Mr Ngo’s frequent breaches of bail conditions, bonds and other Court orders would affect the weight of this deemed community expectation. His involvement in drug trafficking would also affect the weight. The evidence that Mr Ngo has nonetheless held down a variety of jobs and been gainfully employed would also lighten the weight, in his favour.
Finding
Overall, the Tribunal finds that this primary consideration weighs heavily against revoking the mandatory cancellation of the visa. His drug trafficking in particular would be viewed poorly in terms of the expectation of the community.
OTHER CONSIDERATIONS
International non-refoulement obligations (paragraph 9.1)
The Direction sets out that a non-refoulement obligation is an obligation on Australia not to forcibly return, deport or expel a person to a place where they would be at risk of a specific type of harm. Australia has certain international treaty obligations which it must honour.
There was conflicting evidence about Mr Ngo’s place of birth. In his Personal Circumstances Form submitted to the Department (GD, p 52) he wrote that he was born in Grenoble, France, in 1986. In his written statement to the Tribunal he said he was born in Vietnam and moved with his family to France when he was “under one year old”. When asked directly about this inconsistency in the hearing, Mr Ngo said that the reference to being born in France was an error, and that he was in fact born in Vietnam and went with his family to France as an infant. It is not disputed that he is a citizen of the French Republic (GD, p 53).
Accordingly, in the event that the Tribunal affirms the decision, Mr Ngo would be repatriated to France. The Respondent submitted in the hearing that this consideration was not relevant, and the Tribunal agrees with that submission. There were no submissions advanced by Mr Ngo of any fears of potential harm from others if he was repatriated.
Finding
The Tribunal finds that this consideration weighs neutrally.
Extent of impediments if removed (paragraph 9.2)
The Direction requires the Tribunal to consider the extent of any impediments Mr Ngo may face if removed from Australia to France in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country, taking into account his age and health, any substantial language or cultural barriers and any social, medical and economic support available to him.
As mentioned, Mr Ngo grew up from a very early age in Grenoble and lived there until he was aged 15 (noting that he says he was 16 when he arrived in Australia, it would appear he was actually aged 15 in June 2001 when he arrived). That year the family migrated to Australia. He wrote in his written statement:
I speak 3 languages, French is my primary language, Vietnamese is my second language and English would be my 3^rd language. I have also learnt Spanish in year 8 back in France.
He told the Tribunal that he came to Australia with his mother and siblings, the youngest two of whom had been born in France. The evidence is that his father followed on subsequently, but his parents later separated. When asked by the Tribunal why he had not included any of his father’s details in his Personal Circumstances Form, Mr Ngo said his father had not been prominent in his life, but he did say that he periodically speaks to him. His father lives in Adelaide, a fact confirmed by Mr Nguyen in his evidence.
It is clear to the Tribunal that, while Mr Ngo may not have any relatives left in France, he would not face language barriers if returned there, and with this linguistic advantage and some knowledge of the country (albeit as a child), the cultural barriers he might encounter should not be too difficult to surmount.
He has a good work history and has attained certain trade qualifications which would be beneficial in obtaining employment. While it may be accepted that his accreditation may not be recognised in France, his practical skills would make obtaining similar certification practicable. It is accepted that he sustained a nasty workplace injury while working on the new Royal Adelaide Hospital site, when he injured his knee, and he told the Tribunal that this had necessitated two surgeries and some on-going weakness. However, he also outlined his quite impressive fitness regimen and agreed with Mr Dennis that he was otherwise physically fit and healthy.
In his closing submissions, Mr Ngo submitted that he may need further surgery on his knee and said that he had undergone an x-ray and an ultrasound, and had been told by his doctor he needs to have an chest operation for what he thought might be the excision of a gland. He did not provide any further information about this, and no medical records were before the Tribunal.
Under section 33(1)(c) of the AAT Act, the Tribunal has informed itself of the following, through the Expatica website:
Overview of healthcare in France
The French healthcare system
France has a high quality healthcare system that offers universal coverage for all citizens, regardless of age or economic situation. It consists of an integrated network of public and private services including doctors, hospitals, and specialist providers.
Residents are covered through mandatory health insurance contributions in France, with optional private insurance available for those who want additional coverage. Government-funded agencies cover more than 75% of health expenditures in France.
The Ministry of Social Affairs and Health (Ministere des Solidarites et de la Sante) administrates public healthcare in France, with primary and secondary care services delivered by the various different healthcare providers. France offers a high level of preventative healthcare, with available services including addiction prevention, regular medical check-ups, and the promotion of physical activity and healthy eating.
France is ranked 11th on the 2018 Euro Health Consumer Index and has been praised for its efficiency and outcomes. For example, the country has the lowest heart disease mortality in Europe, although it has been criticized for its over-reliance on prescription medication.
Who can access healthcare in France?
Public healthcare in France is accessible by all residents through French health insurance contributions. As of 2016, a new healthcare system for foreigners, known as Protection Universelle Maladie (PUMA), allows access to state healthcare after three months of residence.
By law, all residents must have some form of health insurance, whether state or private. If your household income falls below a certain threshold, you may be eligible for free commentary health insurance coverage (CMU-C) or help in taking out supplementary private health insurance (Aide pour une Complémentaire Santé or ACS).
(Emphasis added.)
A person who has lived in France for more than three months (such as the Applicant) can register for French healthcare. Mr Ngo, as a French citizen, would be able to register for social security, in common with other citizens of that country. While the Tribunal understands the Applicant’s submission that his local doctors are familiar with his knee and other medical conditions, he would have access to the care he needs if returned to France through that country’s comprehensive system of universal healthcare. Although the French healthcare system is tied to mandatory insurance through employment, as the above extract illustrates, there is provision for persons who are not able to work, or who are seeking employment.
The Tribunal accepts that if returned he would be separated from his parents, siblings, and extended relatives, and notes in particular the thoughtful evidence of his cousin Mr Nguyen and his desire to offer such assistance as he could offer, if Mr Ngo is released into the community.
Finding
The Tribunal finds that this consideration weights slightly in favour of revoking the mandatory cancellation of the visa.
Impact on victims (paragraph 9.3)
The Direction requires the Tribunal to consider the impact of the cancellation of the visa on members of the Australian community, including victims of the Applicant’s criminal behaviour, where that information is available.
The Tribunal interprets this to mean; first, that a victim of a non-citizen’s offending must be aware of the immigration action taken by the Minister or delegate and, second, that they must have expressed a view that is before the decision-maker.
The Respondent submitted that, on the evidence, this consideration is not engaged. The Tribunal agrees with that submission.
Finding
The Tribunal finds that this consideration weighs neutrally in this assessment.
Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia (paragraph 9.4.1)
The Tribunal must consider the impact of the decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely. I must have regard to how long the Applicant has resided in Australia, giving less weight where he offended soon after arriving in Australia and more weight to time he has spent contributing positively to Australia.
Mr Ngo has resided in Australia since he arrived in June 2001 aged 15. He has therefore spent all his adult life in this country. His parents are both here, as are all of his siblings. He has one daughter residing here, and a niece, and nephews. His aged grandmother resides in Australia. He lists (GD, p 60) six uncles and aunts and 10 cousins residing in Australia.
Mr Ngo states (GD, p 48) that his mother, three of his brothers and his sister have all become Australian citizens. He said he was not included in his mother’s application for citizenship because he was over 18 at the time she applied.
There is evidence that Mr Ngo has worked, as outlined above, in a variety of gainful employment positions. He asserted that he has been a hard worker, and there is no evidence before the Tribunal to contradict that. It is a matter of deep regret that he has also offended relatively regularly since 2008, which has led to a number of custodial sentences which have axiomatically removed him from working for large periods of time. He began offending in March 2008, which is just over seven years after he arrived in Australia.
There is evidence in the documents before me that the Applicant’s mother at one time became exasperated with him because of his offending and ‘threw him out’. On the other hand, there is evidence from his brother, Jacques, who gave evidence that the family is now supportive of Mr Ngo and, from the Applicant, that another brother has offered him employment in his restaurant. Mr Nguyen gave particularly candid and supportive evidence that he would do what he could to support the Applicant, taking into account his own full-time work and other commitments. Mrs Tyler in her written statement said that she and her husband, the Applicant’s brother-in-law, would offer love and support to him. She considered Mr Ngo would struggle if returned to France.
Finding
The Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation, and relatively strongly, in particular because no member of the Applicant’s family remains in France, so his ties are in Australia.
Sub-consideration: Impact on Australian business interests (paragraph 9.4.2)
This part of the Direction notes that, in assessing impact on Australian business interests, an employment link would generally only be given weight where the decision under review would ‘significantly compromise the delivery of a major project, or delivery of an important service in Australia.’
I do not consider that Mr Ngo’s work placements rise to the level envisaged by this part of the Direction. The Respondent submitted that this sub-consideration was not relevant.
I find that this sub-consideration weighs neutrally.
Finding
However, I conclude that this consideration overall weighs relatively strongly in favour of revoking the mandatory cancellation of the visa because of the general effect Mr Ngo’s removal would have on his immediate and extended family.
CONCLUSION
The Tribunal has considered the primary considerations and other considerations set out in the Direction. I am not constrained only to the contents of the Direction in considering the exercise of the discretion under section 501CA(4) of the Act, but there were no submissions made to me by either party that any other factor may be relevant.
One primary consideration, the protection of the Australian community, weighs relatively heavily against revoking the mandatory cancellation of the visa. One primary consideration, the best interests of affected minor children, weighs relatively strongly in his favour. The primary consideration relating to family violence is not relevant and weighs neutrally. The primary consideration relating to the expectations of the Australian community weighs heavily against revocation.
Of the other considerations, the considerations relating to non-refoulement obligations, impact on victims and the sub-consideration relating to impact on business interests have been found not to be engaged and weigh neutrally. The consideration relating to impediments facing the Applicant if removed weighs marginally in his favour. The overall consideration relating to the strength, nature and duration of ties with Australia weighs in favour of Mr Ngo, and relatively strongly.
Paragraph 7.1 of the Direction states that primary considerations should generally be given greater weight than the other considerations. Paragraph 7.2 goes on to say that a primary consideration may outweigh the other primary considerations. I am not satisfied the single primary consideration that weighs slightly in favour of the Applicant outweighs the primary considerations which weigh against revoking the cancellation, one of them heavily so. I am also not satisfied given the seriousness of the offending and the risk of re-offending that this is a case where one of the other considerations which weigh in his favour outweighs a primary consideration.
The Tribunal, weighing all the considerations, both individual and cumulatively, has not found that the discretion available in section 501CA(4)(ii) of the Act is enlivened in this case. The consequence is that the decision under review was the correct decision.
DECISION

The Tribunal decides, under section 43(1)(a) of the AAT Act, to affirm the decision under review.

I certify that the preceding 197 (one hundred and ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................[sgd]......................................................
Associate
Dated: 27 October 2021

Dates of hearing:

18 and 21 October 2021

Applicant:

Mr Thierry Ngo (Self-Represented)

Advocate for the Respondent:

Mr Liam Dennis

Solicitors for the Respondent:

Minter Ellison

[2021] AATA 3923

27 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Dates of hearing:	18 and 21 October 2021
Applicant:	Mr Thierry Ngo (Self-Represented)
Advocate for the Respondent:	Mr Liam Dennis
Solicitors for the Respondent:	Minter Ellison