Nguyen and Minister for Home Affairs (Migration)

Nguyen and Minister for Home Affairs (Migration) [2018] AATA 4659 (19 December 2018)
Division:GENERAL DIVISION
File Number:2018/5846
Re:Phu Trieu Nguyen
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:19 December 2018
Place:Melbourne

The Tribunal decides to:
(a)set aside the decision of the delegate dated 25 September 2018; and
(b)remit the matter to the Respondent with a direction that the Applicant’s application for a Return (Residence) (Class BB) visa not be refused under section 501 of the Migration Act 1958.

..................[sgd].........................
Senior Member D. J. Morris
Catchwords
MIGRATION – refusal of residence return visa – consideration of character test – drug offences – other offences – risk of applicant engaging in criminal conduct in Australia – misleading information in passport application – assessment of risk – applicant fails character test – consideration of ministerial direction – primary considerations – other considerations – any other relevant matter – decision set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 33
Australian Citizenship Act 1948 (Cth)(repealed)
Australian Citizenship Act 2007 (Cth)
Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth), Sch 1
Freedom of Information Act 1982 (Cth)
Migration Act 1958 (Cth), ss 13, 14, 82(5), 499, 501
Passports Act 1938 (Cth)(repealed)
Sentencing Act 1991 (Vic)
Cases
Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67
Schuster-McFadyen v Minister for Immigration and Citizenship, Re (2011) 124 ALD 68
Lam and Minister for Immigration and Multicultural Affairs, Re [1999] AATA 56
Secondary Materials
Law No. 07/1998/QH10 on Vietnamese Nationality of 20 May 2018 (Gazetted 31 July 1998), accessed 17 December 2018
Migration Act 1958 – Direction No. 65 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (dated 22 December 2014)
National Drug Strategy 2017-2026; Department of Health, Canberra (2017)
REASONS FOR DECISION
Senior Member D. J. Morris
19 December 2018
BACKGROUND

On 25 September 2018 a delegate of the Minister for Home Affairs (the Minister) refused an application by Mr Phu Trieu Nguyen for a Return (Residence) (Class BB) visa. The delegate was not satisfied that Mr Nguyen passed the character test and decided to exercise the discretion provided under section 501(1) of the Migration Act 1958 (Cth) (the Act) to refuse the visa application.
Mr Nguyen was notified of this decision by letter dated 2 October 2018. The letter advised that if he wished to have the delegate’s decision reviewed by the Administrative Appeals Tribunal, he must lodge an application for review with the Tribunal within nine days after the day on which he was notified of the decision. Mr Nguyen lodged an application for review on 11 October 2018.
The hearing was held on 13 and 14 December 2018. The Tribunal was assisted by an interpreter in the Vietnamese language. Mr Nguyen was represented by Mr Nicholas Poynder, of counsel, instructed by Erskine Rodan & Associates. The Respondent was represented by Mr Adam Cunynghame of Sparke Helmore Lawyers. The Tribunal took into evidence documents collated by the Department of Home Affairs (the Department) G‑documents (GD). Both parties submitted Statements of Facts, Issues and Contentions and the Applicant also submitted an Application Book (AB).
The Tribunal also took into evidence a book of records from International Health and Medical Services, lodged on 3 December 2018 (Exhibit A2), a report by Mr Tim Watson‑Munro, consultant psychologist, dated 28 November 2018 (Exhibit A3) and an ICSE screenshot concerning the Applicant’s citizenship application (Exhibit R1).
Applicant’s immigration history
For the reasons set out below, the Tribunal finds that Mr Nguyen is a citizen of Vietnam. He was born to Vietnamese parents in 1972 in Ca Mau, a city then in the former province of Minh Hai (now the province of Ca Mau) in Southern Vietnam (AB, p 146). In 1988 he left Vietnam and travelled by boat to Malaysia. In 1990 he was resettled as a refugee in Denver, United States of America. In January 1994 he arrived in Australia on a Subclass 673 Close Family Visitor (Short stay) visa (AB, p 64). In April 1994 he married Thi To Chau Nguyen in Australia and applied for a partner visa (GD9, p 56). Mr Nguyen was granted a Subclass 801 temporary spouse visa on 13 July 1994, valid until 21 June 1996. He was granted a Subclass 801 permanent spouse visa on 8 August 1996. On 6 August 1999 that visa ceased because of the operation of section 82(5) of the Act as Mr Nguyen was offshore.
Mr Nguyen divorced his wife in June 1998 (AB, p 117). On 9 October 1998 he applied for Australian citizenship and attended an interview conducted by a Department officer (Exhibit R1). That same day he visited the Melbourne Passport Office, part of the Department of Foreign Affairs and Trade (DFAT), and applied for an Australian passport in order to visit his elderly parents in Vietnam. On 12 October 1998 Mr Nguyen’s passport application was approved, incongruously because he was plainly not an Australian citizen. The circumstances surrounding the issue of the passport are discussed below.
On 15 October 1998 Mr Nguyen travelled to Vietnam, on the Australian passport. On 28 April 1999 he returned to Australia. In July 1999 he again departed Australia and returned in July 1999, using the Australian passport.
By this time his resident return visa had expired, however because he re-entered Australia with an Australian passport, that expiry appears to have been overlooked by border authorities. Mr Nguyen departed Australia again in December 2001 and returned to Australia in August 2002. He departed Australia again in July 2003 and returned in January 2004. He has been in Australia since that time.
In March 2004 Mr Nguyen was asked to attend the Department with his Australian passport, which he did. The passport was confiscated from him and its issuance was referred to the Fraud Unit of the Melbourne Passport Office (GD, p 104, AB, p 174).
As set out above, Mr Nguyen ceased to hold a visa because it had expired by operation of law in 1999. That expiry was overlooked because in 2007 the Department, acting on the erroneous assumption that he had been a permanent resident of Australia with a visa since August 1996, considered whether to cancel his ‘visa’. The grounds for cancellation at that time centred on two occasions where Mr Nguyen had been before the courts and had been convicted of offences, the first in August 1997 and the second in August 2002. In addition, the Department considered that Mr Nguyen had “fraudulently applied for and was granted an Australian passport after presenting to the Department of Foreign Affairs [and Trade] a bogus Australian Citizenship Certificate”. For reasons set out below, the Tribunal finds that this information was wrong.
In 2007 the Minister’s delegate decided to warn Mr Nguyen about his conduct in relation to section 501 of the Act. That delegate wrote on the minute (GD, p 106): “Mr Nguyen should be sent a counselling letter so that he is aware of the operation of s 501 of the Migration Act”. It appears that a ‘formal counselling letter’ was prepared. A copy of the letter was obtained by the Applicant’s solicitors by way of procedures under the Freedom of Information Act 1982 (FOI) (AB, p 73). The letter was to be sent by registered mail and the Australia Post receipt is affixed to the letter. However, the letter is not dated, and there is no evidence before the Tribunal as to when or whether it was sent.
In December 2011, Mr Nguyen was granted the first of a succession of bridging visas (GD, p 12). His Bridging E (Class WE) visa ceased on 2 August 2013. Mr Nguyen remained in the community until July 2016 when he was taken into immigration detention (AB, p 117). On 20 November 2017 before a differently constituted Tribunal, a decision was made that Mr Nguyen’s application for a Return (Residence) (Class BB) visa be remitted to the Department for reconsideration with a direction that he meets certain requirements for a Subclass 155 (Five Year Resident Return) visa.
On 7 June 2018 the Department sent Mr Nguyen a Notice of Intention to consider refusal of his visa application under section 501 of the Act on the basis that he did not pass the character test and included with the letter a copy of Mr Nguyen’s National Police Certificate (GD, p 24).
Applicant’s offending history
The National Police Certificate disclosed the following court outcomes against the name of Mr Nguyen:
1997 offences
On 27 June 1997 at Williamstown Magistrates Court he was convicted of the offence of Possess heroin. The sentence was imprisonment for 1 month concurrent, suspended for 24 months.
On 27 June 1997 at the same Court he was convicted of the offences of Possess heroin and Traffick [sic] heroin. On each charge the sentence was imprisonment for 2 months concurrent, suspended for 24 months.
On 27 June 1997 at the same Court he was convicted of the offence of Traffick [sic] heroin. The sentence was imprisonment for 4 months, 2 months of the sentence suspended for 24 months.
2001 offences
On 23 August 2002 at Sunshine Magistrates Court, Mr Nguyen was convicted of two charges of failing to answer bail granted; and the offences of: Traffick [sic] heroin; Possess Money – being proceeds of crime; Burglary; Theft from Shop (Shopsteal). On all charges the sentence was imprisonment for 3 months concurrent.
2006 offence
On 14 May 2007 at Shepparton Magistrates Court, Mr Nguyen was convicted of the offence of Drive Whilst Authorisation Suspended. The sentence was imprisonment for 1 month concurrent, wholly suspended for 12 months; disqualified from driving for 12 months.
2010 offence
On 5 November 2010 at Sunshine Magistrates Court, the Applicant was convicted of the offence of Traffick [sic] heroin. The sentence was imprisonment for 4 months concurrent, to be served by way of an intensive corrections order.
Also before the Tribunal (AB, p 99-101) was the driving offences history of the Applicant. This includes: two offences of driving whilst unauthorised (the first in December 2006 and the second which went to Court in Shepparton above); one January 2006 infringement notice for a speeding offence (licence suspended for 12 months); one December 1997 offence of careless driving ($500 fine); one August 1995 offence of exceeding the prescribed concentration of alcohol in the blood of a driver (adjourned without conviction on undertaking of good behaviour).
The Respondent contended that Mr Nguyen does not satisfy the character test for the purpose of sections 501(6)(a) and 501(7)(d) of the Act in the light of his substantial criminal record which incorporates sentences of imprisonment which total greater than 12 months.
The legislative framework
Under section 501(1) of the Act, the Tribunal acting as the decision-maker may decide that an applicant satisfies the character test requirements and, if so, the decision on the visa application is remitted to the Department with a direction that that requirement is met. The character test is set out at section 501(6) of the Act.
The Respondent refused Mr Nguyen’s visa application under section 501(6)(a):
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
Otherwise, the person passes the character test.
Subsection 501(7)(d) states that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more. Section 501(7A) provides that if a person has been sentenced to two or more terms of imprisonment to be served concurrently (whether in whole or part), the whole of each term is to be counted in working out the total of the terms.
If the Tribunal is not satisfied that Mr Nguyen passes the character test, the next step is to decide whether the discretion should be exercised to refuse to grant his visa application (ReBrown v Minister for Immigration and Citizenship (2009) 112 ALD 67, at [16]) (Brown). In considering the exercise of that discretionary power, where the Minister has issued a written direction under section 499(1) of the Act about the performance and exercise of functions under the Act, decision-makers (including the Tribunal) must, under section 499(2A), comply with any such direction.
On 22 December 2014 the then Minister made Direction No. 65 (the Direction) and it came into operation on 23 December 2014. Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
Relevantly, the Direction includes the following principles at paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In the case of deciding whether to refuse a non-citizen’s visa application, the Direction requires a decision-maker to take into account considerations set out in Part B, which is divided into primary considerations and other considerations.
The primary considerations in Part B are set out in paragraph 11(1):
·    Protection of the Australian community from criminal or other serious conduct;
·    The best interests of minor children in Australia; and
·    Expectations of the Australian Community.
A non-exhaustive list of other considerations set out in paragraph 12(1) of the Direction include:
·    International non-refoulement obligations;
·    Impact on family members;
·    Impact on victims;
·    Impact on Australian business interests.
The Direction sets out that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (paragraphs 8(4) and 8(5)). It is important to note that, as held in Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68, relating to a predecessor of the Direction but still relevant, the Tribunal can give equal or greater weight to any consideration.
It is also important to note that the Tribunal is not constrained to consider only the considerations set out in the Direction and should also consider any other factor that is directly relevant to the exercise of the discretion, taking into account the particular circumstances of the Applicant.
The Applicant’s contentions
Counsel for Mr Nguyen submitted that, in regard to the drug offences, a conviction for trafficking heroin at any level is, in itself, serious merely by reason of the nature of the drug involved, but that the convictions in this case are at a very low level of seriousness. Mr Poynder pointed out that this was also the view taken by the Respondent in the internal advice to the Minister’s delegate in May 2007 (GD p 109) which stated:
Notwithstanding that you may hold a reasonable suspicion that Mr NGUYEN does not pass the character test, it may not be appropriate to consider visa cancellation under subsection 501(2) of the Act in view of the following circumstances:
Whilst trafficking heroin out to be considered a serious offence, the severity of the sentence determined by the court appears to suggest that the offence was of a minor nature. Apart from the criminal incidences reported above, Mr NGUYEN appears to have no other recorded criminal convictions. The last recorded criminal conviction is dated 23/08/2002. The absence of criminal convictions beyond this date suggests that Mr NGUYEN may have reformed and integrated into the Australian community.
Mr Poynder submitted that the 2010 offence was no different in nature from the 2007 offence and that all the trafficking convictions were “no more than that of an individual street vendor selling very small amounts of the drug to undercover police officers”. He said that the court imposed wholly suspended sentences and in 2010 a sentence to be served by way of an intensive corrections order, not by way of custody.
Mr Poynder said that drug offences are not singled out in the Direction as being of particular seriousness, in contrast to serious, violent and/or sexual crimes, crimes committed against vulnerable members of the community or government representatives or officials, or crimes committed in immigration detention, none of which apply in Mr Nguyen’s case. He said that the Applicant’s drug offences did not have an impact on members of the general Australian community because on each occasion an attempt was made to sell the drug to an undercover police officer and the drugs were seized before they went into circulation.
The Applicant’s counsel submitted that there were large gaps in time between each of the drug offences, being almost four years between the 1997 and 2001 offences and then another nine and a half years until the 2010 offence, and that the last offence took place more than eight years ago.
In terms of the 2001 burglary offence, Mr Poynder submitted this appears to have stemmed from a suggestion from Mr Nguyen’s co-offender when the Applicant was under the effect of sleeping pills, and that no one was exposed to danger. The offenders, having broken into a pharmacy, simply waited about until the police came and arrested them.
In terms of the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, counsel referred to an assessment by Dr Emily Kwok, clinical and forensic psychologist, who assessed (GD, p 99) Mr Nguyen as posing “a low risk of recidivism”.

Mr Poynder submitted that there would be a significant impact on immediate family members if Mr Nguyen had to leave Australia because, apart from one older sister, all of his other family reside in Australia and are Australian citizens, and are supportive of him.
The Applicant’s evidence
Mr Nguyen was referred to a statement (GD, p 30) which gave an account, in his words, of his offending. In terms of the 1997 offences he said:
In 1997, I got to know two friends and they both were heroin addicts and heroin dealers. For the first few times when I met these two friends they invited me to smoke heroin. I told them I have not smoked heroin ever. …
Five days later, I again met my two friends. They again invited me to smoke heroin and gave me heroin. After that my two friends invited me to go to Footscray market. When we arrived at Footscray market, my two friends told me to walk around Footscray market and if I saw any guys wanting to buy (heroin) then I would take them to my two friends so they would to [sic] sell heroin to them. Then I met a Caucasian man. I asked this Caucasian man if he was looking for heroin, then I took him to my two friends so they can to [sic] sell him a small packet of heroin worth $40. However, my two friends and I were arrested by this man. That Caucasian man was an undercover policeman.
In terms of the 2001 offences, Mr Nguyen recounted visiting a doctor to obtain sleeping pills. He encountered a friend, also waiting to see the doctor:
When my friend stepped out from the doctor’s room, he told me he got a prescription for sleeping pills. And my friend said there were many people waiting to see the doctor; it would be a long time before my turn would come, so there was no point for me to wait. He told me to come along with him for fun. Then I followed my friend. As we were going around, my friend went to a pharmacy to buy medicine. After that my friend gave me three tablets to take. Two or three hours after I took the tablets, I was affected by the sleeping pills and I was not aware of things. Then my friend asked me to go and break the pharmacy’s door to get medicines. While I was affected by the sleeping pills, I did not remember anything. I listened to my friend and went to break the pharmacy’s door to get medicines. After my friend and I broke the pharmacy’s door, we went into the pharmacy to get medicines. My friend and I walked around in the pharmacy while the effect of the sleeping pills on my body was worsened. I was not aware of things. My friend and I kept walking around in the pharmacy until the police turned up and arrested us and took us to the police station.
In terms of the 2010 offending, Mr Nguyen recounted meeting up with a friend who was a heroin user and dealer. The friend gave him three small packets of heroin to sell on his behalf at the Footscray market. Mr Nguyen set off to do so, and said he again offered to sell a packet to a ‘Caucasian guy’ for $40. The prospective buyer also turned out to be an undercover policeman, who arrested Mr Nguyen. The Applicant said he pleaded guilty when the matter came to court.
In terms of the driving whilst disqualified offence, Mr Nguyen said (AB, p 107):
On 14 May 2007 I appeared in front of the court in Shepparton for an offence of driving over the speed limit and was arrested by the police and the police suspended my driver’s license [sic], and I was kept by the police for three hours to check my alcohol level, while waiting to go in front of the court. While the police prohibited me from driving, my friend drove me and other friends to shop for food. After finishing shopping for food he told me that he had headache and dizziness and he could not drive, he said anyone in the car knew how to drive could drive the car home for him. I told him that the police had prohibited me from driving and I would have to go to court to see whether I would be allowed to drive again. He said if I did not drive then nobody could drive the car home, I therefore drove the car.
Applicant’s evidence about obtaining an Australian passport
Mr Nguyen in cross-examination said that he applied for an Australian passport on 9 October 1998, the same day he applied for Australian citizenship. He said he asked members of a Vietnamese community centre in Footscray to help fill out the passport application form for him.
Mr Nguyen was asked about whether he remembered receiving a letter from the Department of Immigration and Multicultural Affairs dated 23 December 1999 (some 14 months after he lodged his application) relating to his citizenship application. The letter referred to his 1997 offending and invited him to provide information on that offending within 28 days, which would be taken into account in considering his citizenship application. Mr Nguyen said he did not recall receiving the letter. The Tribunal notes that obtained under FOI was a copy of the envelope marked ‘return to sender’ (AB, p 121). Mr Nguyen said he was in Vietnam at that time. Mr Nguyen said he did not know that his Australian citizenship had been refused and he still had his Australian passport; he said he thought he was a permanent resident in Australia.
When asked directly by the Tribunal if he knew that there were further steps that needed to take place before conferral of citizenship, after his October 1998 citizenship interview, Mr Nguyen said he knew there might be ‘further letters’ and that also he knew that he needed to await advice of a date for a citizenship ceremony.
The Tribunal notes that, at this time, Australian citizenship was conferred under the Australian Citizenship Act 1948 (Cth). That Act was repealed on 1 July 2007 by Schedule 1 of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth). The new Australian Citizenship Act 2007 (Cth) established a more rigorous process for obtaining citizenship by conferral, including a language test, but these provisions are not relevant to Mr Nguyen’s 1998 application.
Mr Nguyen was asked if he had ever had a passport issued by the Socialist Republic of Vietnam. He said he had not, because he fled Vietnam aged around 14 and went to the United States of America. The Applicant said that he was issued a ‘temporary US passport’ because he was not a United States citizen, which allowed him to travel to Australia in 1994.
Mr Nguyen said he thought that, as the holder of a visa and as a permanent resident, he was eligible to be issued an Australian passport. He attended the Passport Office with various personal identity documents including a driver licence, Medicare card, bankcard and a receipt issued by the Department of Immigration and Ethnic Affairs. The receipt was obtained under FOI (AB, p 130) and was issued on 9 October 1998 recording that Mr Nguyen had paid $120 for “Grant of Citizenship”.
Mr Nguyen said that he was not asked too many questions at the Passport Office, “they just looked at the form”. After one week he was contacted and told to come in and collect the passport.
The Tribunal asked Mr Nguyen how, if he filled in the application form without the assistance of family members, he was able to include the passport number of his sister, Ms Quyen Nguyen. He responded that ‘by chance’ he met her at the market and she told him her passport details.
Evidence of Mr Tim Watson-Munro
The Tribunal heard evidence from Mr Tim Watson-Munro, consultant psychologist. He examined Mr Nguyen at Villawood Detention Centre (Villawood) on 21 November 2018 and provided a report dated 28 November 2018 (Exhibit A3).
In his report, Mr Watson-Munro recited Mr Nguyen’s personal history including the traumatic circumstances of his leaving Vietnam by boat with his sister to Malaysia and eventually being relocated first to the Philippines and then to the United States. He stated:
Arising from these issues, in my respectful view, Mr Nguyen has suffered ongoing psychological problems in varying degrees of intensity. This offers some explanation as to his prior reliance upon heroin as a means of self-medication. There is also a clear nexus between his drug use and his criminal history. He has had no treatment over the years and in this setting, it comes as little surprise that when he is confronted with stress in his life, there is a recrudescence of these dynamics.
That said he has now been drug free for four years. [Mr Watson-Munro clarified in oral evidence that he believed Mr Nguyen had been drug free since 2010.] I note from the extensive report of Dr Emily Kwok that in her view he has stabilised and that at the time of her assessment he was not suffering any major psychiatric or psychological disturbance. I concur with this view with the caveat that he is currently anxious, against a backdrop of uncertainty regarding his future, particularly should he be deported to Vietnam, a country with which beyond his birth there he has little familiarity. Mr Nguyen has expressed remorse for his actions and has a strong motivation to remain drug and crime free in Australia. To this end he stated that he is well supported by his family here.
The Tribunal asked Mr Watson-Munro if he performed any intelligence tests on Mr Nguyen. Mr Watson-Munro said that he did not because the efficacy of such tests is affected when they are undertaken through an interpreter, but with that qualification his general professional assessment was that the Applicant was of below average intelligence.
Mr Watson-Munro said that the international benchmark for assessing whether a person was drug-free is generally two years of drug-free time, but that he might extend this a little given that Mr Nguyen has been in detention, noting that contraband is obtainable in prison and, he presumed, possibly in immigration detention. He said his view was that Mr Nguyen has detoxified but lacks social skills and needs support and professional assistance in the community.
Evidence of Dr Emily Kwok
As mentioned, the Tribunal heard evidence from Dr Kwok. She examined Mr Nguyen for two hours at Villawood and provided a report dated 13 August 2018 (GD, p 93). She confirmed that Mr Nguyen told her he did not use drugs between 2002 and 2010. Her estimation of when he first used heroin was ‘probably 1997’ and at the highest level he smoked the drug twice a day; he also used cannabis from 2000. Dr Kwok said Mr Nguyen gave long answers to simple questions and there was an element of general confusion in his responses.
Dr Kwok said Mr Nguyen reported learning difficulties as a child and his general responses were suggestive of a lower level of intelligence, noting that no formal tests were administered. In terms of Dr Kwok’s assessment of whether Mr Nguyen poses any risk to the Australian community she wrote (GD, p 99):
Mr. Nguyen presented as an individual who was functioning in the community especially when he had the support of his siblings. He was a contributing member of society when he was engaged in work, although he also had extensive periods of unemployment. In the event that he is permitted to remain in Australia, Mr. Nguyen stated that he will look for work and, if possible, find work that provides greater stability and where he will be away from family less often. With adequate prosocial support, there is no indication that he poses any risk to the Australian community.
Evidence of Dr Peter Higgs
Dr Peter Higgs of the Burnett Institute gave evidence. He said he first met Mr Nguyen when he was researching for his doctorate in epidemiology. The subject matter was drug taking among young members of the Vietnamese community. He said at that time he saw Mr Nguyen on many occasions, including at the ‘squat’ where he was then living. Dr Higgs told the Tribunal he speaks Vietnamese and was able to observe many young Vietnamese males who used heroin, almost always by smoking rather than intravenously.
Dr Higgs provided a testimonial (AB, p 183) dated 30 May 2011 in which he wrote:
It is my opinion that Trieu Nguyen is a very reflective man and this has been emphasised by the conversations we have had about his current situation. … In speaking with him recently, I believe that he is well aware of the situation he has now found himself, and understands the importance of making a special effort to integrate himself fully into the Australian community. I believe he is working towards this.
My working relationships include a number of other social and welfare organisations in the inner western suburbs some of which Trieu also has contact. I will continue to be available to work with him and am in a position to facilitate his continued rehabilitation and integration into the Australian community.
Dr Higgs reiterated this offer of support at the hearing.
Evidence of family members
A number of Mr Nguyen’s family members provided written statements and gave evidence in support of the Applicant. Family witnesses who gave evidence included; Ms Thi Quyen Nguyen and Ms Hong Thu Nguyen, sisters who reside in Australia and who are Australian citizens (AB, p 182), Ms Thi Thu Nguyen, the Applicant’s older sister who is the only remaining sibling who still resides in Vietnam but who was visiting Melbourne on holiday; and Ms Caroline Nguyen, Mr Nguyen’s niece.
All expressed support for the Applicant if he is allowed to remain in Australia, and offers of lodging for him and assistance in job-seeking.
Ms Quyen Nguyen agreed that she had signed the photograph on Mr Nguyen’s passport application. When asked about whether she was able to read or write English, she said she could not, but her husband had written out the required certification for photographs of the passport applicant in English, which she had traced onto the form.
Consideration – the matter of the passport
The issuance of an Australian passport to Mr Nguyen in October 1998 was clearly a significant breakdown in the then processes of the Department of Foreign Affairs and Trade. The Tribunal spent a significant part of the hearing exploring the circumstances surrounding Mr Nguyen applying for a passport and it being issued, in spite of the fact that the vital prerequisite, Australian citizenship by birth, descent or conferral, was not satisfied.
Exercising powers under section 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal took into evidence a copy of the data pages of a travel document issued to the Applicant on 27 December 1993 by the United States Department of Justice Immigration and Naturalization Service. The document is described as a Permit to Reenter [sic] the United States, and relevantly states:
Pursuant to the provision of section 223 of the Immigration and Nationality Act, this Permit is issued to the person named herein, an alien previously lawfully admitted to the United States for Permanent Residence, to Reenter the United States as a special immigrant, if otherwise admissible.
THIS IS NOT A UNITED STATES PASSPORT
This Permit does not protect your residence for Naturalization purposes.
The document is stamped for entry at Sydney Airport on 23 January 1994 and I am satisfied this is the ‘temporary US passport’ to which Mr Nguyen referred in his evidence.
This is an important document in this consideration, because Mr Nguyen knew that he was not a US citizen but also knew that the US Government had issued this travel document (which has certain characteristics of a passport) and that he had used it to travel internationally. This lends support to Mr Nguyen’s evidence that, while he knew he was not an Australian citizen, he thought, analogously, that his permanent residency entitled him to be issued with an Australian passport.
In addition to that is the evidence obtained under FOI from a DFAT Investigation Report dated 4 August 2016 (AB, p 59) which concluded that there was insufficient evidence to lay charges that fraud had been committed by Mr Nguyen in obtaining the passport. That report relevantly states:
A check of the passport verification screen shows that the Citizenship number presented was not verified prior to issuing the passport. The authorising officer forced the application through the system to be issued. The officer was working at the Melbourne office however is no longer an employee of the department.
(Emphasis added).
On examination of the passport application form (AB, pp 1-3) it would appear to the Tribunal from the handwriting on the form that a staff member of the Passport Office, not Mr Nguyen, filled in the part of the form where an applicant is to provide details of their Australian citizenship certificate, where applicable. The handwriting is distinctive and matches the handwriting in the ‘office use only’ checklist relating to identity documents, completed by the interviewing officer. The representative of the Respondent did not disagree with the Tribunal’s assessment of the form in this regard.
It also appears the fact that Ms Quyen Nguyen, the sister of the Applicant who was related to the applicant by birth or marriage and was not therefore a person qualified under the Passports Act 1938 (Cth) to verify the identity of an applicant, was either overlooked by the same staff member, or her ineligibility was deliberately ignored.
Some elements of Mr Nguyen’s evidence about how he filled in the form were inchoate or inconsistent. The Tribunal does not find it plausible that he happened to encounter his sister at the Footscray market and that she happened to know her passport number by heart. However, these events were 20 years ago and some unreliability of recollection may fairly be taken into account.
Given Mr Nguyen’s experience with the US travel document and given that the receipt he took to the Passport Office on 9 October 2018 clearly states he had paid a prescribed amount for “Grant of Citizenship”, it is not unreasonable to conclude that he believed he had satisfied all the requirements for citizenship. He had completed an interview, provided his identity documents and had paid the fee and been given a receipt. The evidence is that he did not receive the subsequent letter from the Department of Immigration and Multicultural Affairs asking him to provide comments on his offending history before the Department proceeded to consider the application further, because he was overseas and the letter was returned, undelivered, to the Department. The evidence also is that he was able to depart and enter Australia several times on the passport. In spite of some contrary references in the G-documents, the passport itself was not false, even if improperly issued by an officer no longer employed by the issuing agency. Equally, in spite of some reports referring to the Applicant producing a ‘bogus citizenship certificate’ at the time of his passport application, there is no evidence that any bogus document was presented.
The Tribunal concludes that, while there are some unexplained elements to this particular matter, a finding that Mr Nguyen acted fraudulently cannot be made. Mr Poynder submitted that DFAT had cleared Mr Nguyen of fraud. Mr Cunynghame said this was not strictly correct and, in any event, in terms of satisfying the character test, it was not relevant whether the Applicant had committed fraud.
The Tribunal accepts that Mr Nguyen was not ‘cleared’ of fraud because the investigation was abandoned, and that part of the reason that DFAT decided not to proceed against him was their judgement that he may be deported from Australia in any event. The Tribunal also agrees that it is not necessary for there to be a conclusive finding of fraud for the circumstances surrounding the obtaining of an Australian passport, without entitlement, to nevertheless count adversely in terms of whether or not Mr Nguyen passes the character test.
However, just as the Tribunal generally places no, or very little, weight on any charges against a person where those charges are not subsequently proceeded with or are withdrawn, there is little evidence on the papers that Mr Nguyen knew he should not apply for an Australian passport when he did. The evidence that the interviewing officer took it upon herself to fill in details of an Australian citizenship certificate (which did not exist), and then undertook a computer override to force the issuance of the passport is exculpatory of the Applicant.
Consideration – the character test

Whether Mr Nguyen satisfies the character test is, Mr Poynder, submitted “borderline”. He submitted that it is some eight years since the Applicant has taken heroin, or indeed any other illicit drug noting that although he has been in detention for part of that time, such contraband is obtainable even in custody. The Respondent argued that Mr Nguyen does not satisfy the character test because his sentences of imprisonment total greater than 12 months.
The Tribunal finds that the effect of the operation of section 501(7)(d) of the Act on section 501(6)(a) is that Mr Nguyen has a substantial criminal record. The Act requires concurrent sentences to be counted in terms of the whole of each term of imprisonment imposed and on the evidence in the National Police Certificate, the 12 month period is exceeded. Mr Nguyen therefore does not pass the character test.
Consideration – the Direction
Having made that finding, the Tribunal must then move on to the next step, the consideration of the relevant provisions for visa refusal set out in Direction 65.
Primary consideration: Protection of the Australian community (paragraph 11.1)
The Respondent argued that Mr Nguyen has been sentenced to terms of imprisonment on multiple occasions and that custodial sentences are the last resort in the sentencing hierarchy. The Respondent further submitted that the Applicant’s repeated offending conduct and convictions have a cumulative effect.
Counsel for the Applicant submitted that no members of the Australian community were affected by Mr Nguyen’s drug offences because “on each occasion an attempt was made to sell the drug to an undercover police officer and the drugs were seized before they made it into circulation”. This is not strictly true; Mr Nguyen was given the packets of heroin to sell to buyers at large; it was his bad luck that he attempted to sell the drug to undercover police.
In his evidence, Mr Nguyen said that he thought he had actually sold one packet of heroin to a member of the community, but that on two subsequent occasions he had attempted to sell to persons who then revealed themselves to be police officers.
While it stretches plausibility somewhat to conclude that Mr Nguyen was as hapless as it appears in terms of his drug-trading, the absence of any sentencing remarks which may shed light on other potential offending limits the Tribunal’s assessment. The Tribunal only considers the offending of which there is evidence. There are certainly large gaps in Mr Nguyen’s drug offending, a gap of around four years between 1997 and 2001 and then a further gap of eight years to the end of 2010. Furthermore, there was no offending of any sort recorded from 2010 until Mr Nguyen was taken into immigration detention in 2016.
Drug selling, particularly of a drug like heroin, is a serious matter and the Tribunal notes that counsel for the Applicant did not walk away from that truism. However, I also note the evidence of Dr Higgs about the circumstances of Mr Nguyen at the time, which he personally observed during his doctoral research. I accept that smoking heroin for personal use was part of the subculture for a sector of the Vietnamese community at the time and that this was the predominant driver of Mr Nguyen’s drug conduct, not the selling of the drug.
The nature and seriousness of the conduct (para 11.1.1)
In terms of the Direction, decision-makers are required to take into account the sentences imposed by a court for crimes. In this regard, while there was some confusion about concurrent and suspended sentences at the hearing, the National Police Certificate indicates two custodial sentences: an effective term of two months in 1997 and three months in 2002. In relation to the most recent offences, the Court determined that the four month sentence be served by way of an intensive corrections order under provisions of the Sentencing Act 1991 (Vic) then in force.
In terms of the burglary of the pharmacy, while the Tribunal accepts that the Applicant and his co-offender may have been affected by prescription drugs at the time, the fact remains that they damaged property and entered a premises with some intent to steal. That they may have been in a stupor and were quickly arrested by the police does not detract from this being a serious offence; business owners are entitled to be protected from such behaviour, and pharmacies are particularly vulnerable.
In terms of the driving offences, there are a number and they do not reflect well on Mr Nguyen, especially when he drove whilst he knew on his own admission he was disqualified. The Tribunal notes that Mr Cunynghame did not press the driving offences on behalf of the Respondent at the hearing.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 11.1.2)
Decision-makers are required by the Direction to have regard to the likelihood of the non‑citizen re-offending. As mentioned above, both Mr Watson-Munro and Dr Kwok examined the Applicant and concluded in their clinical opinions that there was a ‘low risk’ of recidivism. I take into account that the offending by Mr Nguyen has not strictly involved crimes against the person nor has there been any violence. The rudimentary attempts to trade small packets of heroin would seem, on the admittedly fairly sparse evidence, to be related to supporting a personal habit rather than any commercial activity.
In Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56, at [51], Mathews J stated:
Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.
The Tribunal, with respect, agrees with this conclusion. It would be wrong to conclude that there is no risk of re-offending but the professional assessments, coupled with the long gaps between instances of offending, including no offending since 2010, combine to satisfy the Tribunal that the risk of re-offending is low, perhaps very low. In this respect, I give weight to the support of Mr Nguyen’s siblings and their offer to provide lodging and some stability should he be allowed to remain in Australia.
The Tribunal concludes that the primary consideration of protection of the Australian community, overall, weighs against granting Mr Nguyen a visa, but not heavily so.
Primary consideration: The best interests of minor children in Australia affected by the decision (para 11.2)
Mr Nguyen had no children with his former wife who still resides in Australia. He has one child from an earlier relationship, but that child is now an adult and lives in Vietnam, so is not relevant to this consideration. The parties did not make any submissions in regard to this part of the Direction, and the Tribunal finds it is not engaged in this matter.
Primary consideration: Expectations of the Australian Community (para 11.3)
As the Direction states, the Australian community expects non-citizens to obey Australian laws while in Australia and visa refusal may be appropriate simply because the nature of the offences are such that the Australian community would expect that the person not be granted a visa. The Australian community is, by definition, made up of individuals with widely different views. Determining what those expectations are, a necessary requirement of the Direction, should, in the view of the Tribunal, be done in a cautious manner.
The Tribunal’s view is that this part of the Direction should be interpreted as gauging, as best as the decision-maker can, the expectations of community members who are properly informed about the Applicant’s offending history. The Respondent provided to the Tribunal the Government’s National Drug Strategy 2017-2026 and rightly, in the Tribunal’s view, drew attention to the effect drug-taking and trafficking has on our society.
Balancing that is that Mr Nguyen is, by any measure, a very small player in the drug scene. The commerciality of his attempts to sell drugs appears on the evidence to have gained him, perhaps, $40 for one packet of heroin. Nevertheless, it is reasonable to conclude that, having fallen into drug selling, he was participating as an individual in what is a much larger national scourge.
The Tribunal concludes that this primary consideration weighs against, but not strongly against, refusing Mr Nguyen’s visa.
Other considerations
International non-refoulement obligations (para 12.1)
Although Mr Nguyen stated that he ‘fled’ Vietnam aged around 14, evidence that was corroborated by his sister, there were no submissions from Mr Poynder or the Respondent that he would be at risk of any specific type of harm if repatriated. The movement records provided by the Department to the Tribunal indicate that he has departed Australia on several occasions since his arrival in 1994 and Mr Nguyen gave evidence that he resided for periods in Vietnam; indeed a desire to return to Vietnam to visit his ageing parents in 1998 was what precipitated his application for an Australian passport. The Tribunal finds that the relevant provisions of the 1951 Convention relating to the Status of Refugees are not engaged.
It is convenient here to consider Mr Nguyen’s citizenship. Under FOI the Applicant’s solicitors obtained a letter to the Department dated 8 September 2011 signed by a Counsellor at the Vietnamese Embassy in Canberra (AB, p 172). It stated:
The Embassy of the Socialist Republic of Vietnam in Australia has the honour to advise that the Embassy is not in the position to issue passport/travel document for Mr. NGUYEN PHU TRIEU, born on 31-12-1972, as the said person does not have any evidence of holding Vietnamese citizenship.
The Tribunal queried this document in terms of whether it should conclude that Mr Nguyen may be stateless. Mr Cunynghame submitted that the Department believed the Applicant was a national of Vietnam (for example GD, p 11). The Tribunal notes that a screenshot of a Department database (AB, p 72) described Mr Nguyen as a citizen of the United States of America, but finds that this is an error based on his US Department of Justice travel document being mischaracterised as a US passport. Mr Poynder submitted that the Tribunal should interpret the Vietnamese Embassy letter as evidence that Mr Nguyen is not a citizen of that country.
After careful consideration, the Tribunal is satisfied that Mr Nguyen is a citizen of Vietnam. His own evidence and multiple documents, including from his solicitors (for example AB, p 173) refer to him being born in Vietnam. A copy of his birth certificate (AB, p 146) also obtained under FOI from the Department states he was born in that country.
Article 16 of Law No. 07/1998/QH10 on Vietnamese Nationality of 20 May 1998 relevantly states:
A child born to parents, both of whom are Vietnamese citizens, shall hold Vietnamese nationality, regardless of whether the child was born inside or outside the Vietnamese territory.
The Tribunal is therefore satisfied that Mr Nguyen is a citizen of Vietnam. The letter to the Department from the Embassy declared only that it was not in a position to issue travel documents because the Embassy did not have evidence from him of holding citizenship. The letter did not conclusively state that Mr Nguyen did not hold Vietnamese citizenship.
Impact on family members (para 12.2)
The Respondent conceded that this consideration weighs in favour of the Applicant. Mr Poynder submitted that Mr Nguyen’s entire close family is in Australia, are Australian citizens, and are very supportive of the Applicant. The Tribunal notes that Mr Nguyen’s parents have passed away since he has been in Australia and he has only one sibling, Ms Thi Thu Nguyen, residing in Vietnam. He also has an adult daughter but the extent of his contact with her was not clear. It is significant that Ms Thi Thu Nguyen also gave evidence in his support in person, being on holiday visiting family in Australia.
The Tribunal is satisfied from the oral evidence and the several written statements submitted by the Applicant that Mr Nguyen’s family would be significantly affected were he to be repatriated. The Tribunal concludes that this consideration weighs significantly in favour of granting him a visa.
Impact on victims (para 12.3)
The Direction provides that this consideration is relevant when information is available, but there was no evidence of such information before the Tribunal.
Impact on Australian business interests (para 12.4)
Mr Nguyen has had a chequered employment history. He worked for a time on a strawberry farm in Queensland and undertaking some trade work, including plastering. He has been unemployed for long periods and in receipt of Centrelink benefits. The Direction indicates that this consideration should only be given weight where visa refusal would compromise the delivery of a major project or service in Australia. The Tribunal does not find this consideration relevant in this matter.
Other relevant matters
The Tribunal is not constrained only to consider matters highlighted in the Direction, and must also consider any other relevant matters in relation to the visa refusal. On balance the Tribunal concludes that, while there are certain unsatisfactory elements surrounding the 1998 passport application, they are not pivotal against the Applicant.
CONCLUSION
Having found that Mr Nguyen fails the character test, following Brown, the exercise of the discretion in section 501(1) of the Act must be considered. The Tribunal does not want to leave the impression that any trafficking in an addictive drug (even of a small amount as in this case) is not a serious offence; however it is necessary also to have regard to the proportionality of the offending and the sanction imposed by the Court (paragraph 11.1.1(1)(d) of the Direction). The Tribunal takes into account the sporadic nature of Mr Nguyen’s offending, the relatively lenient treatment of it by the Courts which had firsthand knowledge of the circumstances of each offence, and his offending history, and the fact that the ‘trafficking’ aspect of it was, on the evidence, not only fairly feeble but also fruitless.
The Tribunal also takes into account the fact that Mr Nguyen has resided in the Australian community for the vast bulk of his adult life and that his familial ties, except for one older sister and an adult daughter, are all strongly with Australia, and have been for most of his adult life. The Tribunal considers the support by his family were he allowed to stay, and the reiterated offer of support from Dr Higgs, play significantly in his favour.
Section 13(1) of the Act provides that a non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen. Section 14 provides that a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen. The Act and its subordinate legislation include significant provisions for the removal from Australia of persons who are in the second category. Implicit, in the Tribunal’s view, is that non‑citizens in Australia are expected to ensure that their migration status remains lawful, i.e. that they possess a valid visa. In Mr Nguyen’s case, for a significant period of time he was an unlawful non-citizen because of the cancellation of his permanent residence visa in 1999. However, the Tribunal finds that because of the mistaken actions by two government departments, he held a reasonable belief for much of this time that he did possess a permanent residence visa. Because of this unusual combination of circumstances, the Tribunal does not consider this period in Australia without a valid visa should be counted adversely against the Applicant.
After careful consideration of the professional clinical opinions of the low risk of Mr Nguyen re-offending and the length of time the Applicant has been in Australia, the Tribunal concludes that the preferable decision in this matter is that the discretion provided in section 501(1) of the Act to refuse to grant a visa should not be exercised.
DECISION
The Tribunal decides to:
(a)set aside the decision of the delegate dated 25 September 2018; and
(b)remit the matter to the Respondent with a direction that the Applicant’s application for a Return (Residence) (Class BB) visa not be refused under section 501 of the Migration Act 1958.

106. I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

.....[sgd].........................................
Associate
Dated: 19 December 2018

Date of hearing:

13-14 December 2018

Counsel for the Applicant:

Mr Nicholas Poynder

Solicitors for the Applicant:

Erskine Rodan & Associates

Solicitors for the Respondent:

Sparke Helmore Lawyers

[2018] AATA 4659

19 December 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Statutory Construction

Jurisdiction

Date of hearing:	13-14 December 2018
Counsel for the Applicant:	Mr Nicholas Poynder
Solicitors for the Applicant:	Erskine Rodan & Associates
Solicitors for the Respondent:	Sparke Helmore Lawyers