Nguyen and Minister for Home Affairs (Migration)

[2018] AATA 4637

Nguyen and Minister for Home Affairs (Migration) [2018] AATA 4637 (17 December 2018)

Division:General Division

File Number:          2018/5625

Re:Anh Tuan Nguyen

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie

Date:17 December 2018

Place:Melbourne

The Tribunal decides to:

affirm the decision of a delegate of the respondent dated 21 September 2018 and made under s 501CA(4) of the Migration Act 1958 (Migration Act) not to revoke the decision made on 28 February 2017 to cancel the applicant’s Class BB Subclass 155 Five year Resident Return visa under s 501(3A) of the Migration Act.

...................[sgd]...................................................

Deputy President S A Forgie

MIGRATION – mandatory cancellation of visa due to substantial criminal record – no other reason why decision should be revoked – decision affirmed

Legislation
Migration Act 1958
Sentencing Act 1991 (Vic)
Summary Offences Act 1966 (Vic)

Cases

Betkhoshabeh v Minister for Immigration & Multicultural Affairs [1998] FCA 934
Gapes v. Commercial Bank of Australia Ltd (1979) 27 ALR 87
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 42 ALR 209; 63 FLR 441
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313; 62 ALD 673; 33 AAR 1
Minister for Immigration and Multicultural Affairs v Daniele [1981] FCA 212; (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349
Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305; 42 ALR 609
Proprietary Articles Trade Association v Attorney-General for Canada [1931] AC 310
R v Gabriel [2004] ACTSC 30
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Ridley v Secretary, Department of Social Security (1993) 42 FCR 276
Saffron v Commissioner of Taxation (1991) 30 FCR 578
Slaveski v State of Victoria & Ors [2010] VSC 441
Sodeman v The King (1936) 55 CLR 192
Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296; 69 AAR 8
Veen v The Queen (No. 2) (1988) 164 CLR 465

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials
Direction No.65 made under s 499 of the Migration Act 1958

REASONS FOR DECISION

Deputy President S A Forgie

1. On 28 February 2017, Mr Anh Tuan Nguyen’s Class BB Subclass 155 Five Year Resident Return visa was cancelled under s 501(3A) of the Migration Act 1958 (Migration Act). Under s 501CA(3), a delegate of the then Minister for Home Affairs (Minister) invited Mr Nguyen to make representations as to why the Minister should revoke the cancellation decision under s 501CA(4). Mr Nguyen made representations but another delegate decided on 21 September 2018 not to revoke the cancellation decision. As a consequence, Mr Nguyen does not hold a visa authorising him to travel to, enter or remain in Australia should he leave it. I have decided to affirm the decision not to revoke the cancellation decision.

LEGISLATIVE BACKGROUND

1. In this passage of my reasons, I will set out the provisions of the Migration Act which provide the legislative basis on which Mr Nguyen’s visa has been cancelled by operation of the law set out in the Migration Act. They also provide the basis on which I must consider his request for revocation of the decision.

Cancellation of Visa under s 501(3A)

1. In so far as it is relevant in this case, s 501(3A) of the Migration Act provides that:

   “The Minister must cancel a visa that has been granted to a person if:

   (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

   (ii)…; and

   (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.”

1. Of the subsections specified in s 501(3A)(a)(i), only s 501(6)(a) when read with s 501(7)(c) is relevant. It provides that a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more”. Putting aside an earlier sentence of imprisonment for nine months, Mr Nguyen’ most recent conviction led to his being sentenced to one term of imprisonment of four years. That means that he does not pass the character test as defined in s 501(6)(a) because he has a “substantial criminal record” as defined by s 501(7)(c). In light of that, the terms of s 501(3A)(a)(i) obliged the Minister to cancel Mr Nguyen’s visa. As Mr Nguyen is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of, in this case, the State of Victoria, the Minister was also required to cancel Mr Nguyen’s visa under s 501(3A)(b).

1. Section 501CA is relevant if the Minister has made a decision, known as the “original decision”, under s 501(3A) to cancel a visa that has previously been granted to a person.[1] Section 501CA(4) provides that:

   “The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)that the person passes the character test (as defined by section 501); or

   (ii)that there is another reason why the original decision should be revoked.”

   [1] Migration Act; s 501CA(1)

1. In the circumstances of this case, Mr Nguyen acknowledges that he cannot rely on the provisions of s 501CA(4)(b)(i) as he cannot pass the character test set out in s 501(7) due to his having been sentenced to a term of imprisonment of 12 months or more. The only relevant provision, therefore, is that in s 501CA(4)(b)(ii). It which requires me to consider whether “… there is another reason why the original decision should be revoked.”  The way in which I am required to consider this issue was addressed by North ACJ in Gaspar v Minister for Immigration and Border Protection:[2]

   “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. …”[3]

   [2] [2016] FCA 1166

   [3] [2016] FCA 1166 at [38] and cited with approval in Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]-[32] per Collier J with whom Logan and Murphy JJ agreed.

1. Under s 499 of the Migration Act, the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[4]  Those directions must not be inconsistent with the Act or the Regulations made under it.[5]  The person or body to whom the directions are given must comply with them.[6]

   [4] Migration Act; s 499(1)

   [5] Migration Act; s 499(2)

   [6] Migration Act; s 499(2A)

1. The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501CA. It is known as “Direction No. 65” and applies to the decision made in relation to a visa of the sort held by Mr Nguyen.  I will come back to Direction No. 65 and to the particular directions which it sets out and to which I must have regard.

BACKGROUND

Early life

1. Mr Nguyen was born in a small village in Vietnam in 1985.  The village is situated in a rice growing area.  His father abused his mother and would spend the money she earned to support his gambling and drinking habits.  After his mother complained about being beaten to the police, Mr Nguyen’s father did not permit her to see her son for two years between 1993 and 1995.  At the time he was first separated from his mother, Mr Nguyen was eight years of age.  His father would beat him.  Mr Nguyen felt isolated at school because his classmates bullied him because he was being beaten by his father.  After a time, however, he preferred being at school to being at home and he began to make friends.  He would stay at school in order to avoid going home.

1. After being beaten with a belt buckle, Mr Nguyen had to be hospitalised.  His mother took her son to live with her but he returned to live with his father when his father threatened them both.  Mr Nguyen’s mother also returned to live with her son and husband in order to protect her son.  Mr Nguyen was then awarded a scholarship to study chemical engineering in Russia.  Although he attained satisfactory results, he did not complete the degree in the three years he lived in Moscow.  He is fluent in the Russian language.

Early years in Australia

1. When Mr Nguyen was 18 years of age, his mother divorced his father.  In 2004, she married an Australia citizen and moved to Australia to be with him.  Mr Nguyen was 22 years of age when he first arrived in Australia in February 2007.  He entered Australia on a Dependent Child Subclass 455 visa.  Upon arrival, Mr Nguyen joined his mother in the Mildura and Robinvale areas where they both worked on farms.  They did so for a few months and then moved to Melbourne where Mr Nguyen enrolled in a Bachelor of Information Technology at RMIT.  RMIT gave Mr Nguyen credit for his studies in Russia[7] and he completed half the course before he was incarcerated.[8]

   [7] Statement of Mr Nguyen dated 1 August 2017 at [37]; G documents at 89

   [8] Statement of Mr Nguyen dated 1 August 2017 at [41]; G documents at 89

1. In 2008, Mrs Nguyen and her husband separated.  Their divorce was finalised in late 2009.  While it was being finalised, Mrs Nguyen had to leave the marital home for some six months from February to August 2009 while a dispute regarding its ownership was resolved.  During those months, she lived in her car.  For a few weeks, her son lived with her in the car as well but then he left her on her own.  Mrs Nguyen’s explanation for his leaving was that:

   “… he did not want to see me suffering and living in the car.  He had seen how his father treated me and he was upset that he could not protect me from getting hurt again by John.  Anthony said he was the man and that he needed to find the way for us to survive.”[9]

   [9] Exhibit A; Statement of Mrs Nguyen at [6]

1. Mr Nguyen had begun work as a kitchen hand at the Qantas Lounge at Tullamarine Airport in 2009 or possibly 2008.[10]  Both he and his mother said that they lived in the car together for a few weeks.  In March, he could not see any future if they continued to live in a car park and he moved out.  He needed to be a man.  At the time, he was working casually for Qantas and was not working many hours.  After he left the car park, Mr Nguyen did not speak to his mother even though she called him many times.  He wanted to be away from her and to be independent.  In his eyes, his mother saw him as a vulnerable child whom she tried to protect.  He wanted to be independent and to work.  She had, Mr Nguyen said, held on to him too many times.  After a time, his reason for not returning her calls became embedded in his shame in not succeeding in gaining other employment.

   [10] Mr Nguyen’s statements are not consistent on this point with his statement dated 1 August 2017 at [38] – G documents at 89 – specifying 2008 and his later statement dated 23 November 2018 at [6] – Exhibit A – specifying 2009.

1. In approximately mid March 2009, Mr Nguyen moved into a friend’s garage for three months or so.  In June or July 2009, he moved into a room with two other people in an inner suburb of Melbourne.  He stayed there for nine or ten months.  During that time, he found a casual job as a cleaner at the Victoria Markets and remained there for two or three months.  At the same time, he continued to work for Qantas at the airport and also worked as a fruit picker on apple and strawberry farms near Melbourne.  During this time, Mr Nguyen said that he would leave any spare money that he had at his mother’s house.  On many occasions, Mrs Nguyen said, she found grocery items or money that he had left for her at her house.  When he decided to move to Queensland to work as a tomato picker, Mr Nguyen left $500 and a loaf of bread for her at her house. 

1. Mr Nguyen travelled to Queensland in October 2009.  Accommodation was not provided for him or for the other six or seven people who travelled with him for work.  They slept in the van they had travelled in and were taken by the contractor to the local pub each night to play the pokies.  He had never played the pokies before but he saw people win and lose and started to become addicted to them.

1. Mr Nguyen returned to Melbourne and worked once more in hospitality with Qantas in November 2009.  In late January or February 2010, Qantas let Mr Nguyen go because he had purchased duty free items for another employee who worked in the Qantas kitchen. Mr Nguyen made that statement in his later statement dated 23 November 2018[11] but in his earlier statement dated 1 August 2017, he had described the period of his employment as starting “… in 2008 where I remained until 2011, returning in 2012 and staying until 2014.”[12]  This omits the interruption of his employment from 2010 until 2012.

   [11] Exhibit A; Statement of Mr Nguyen at [13]

   [12] Mr Nguyen’s statement 1 August 2017 at [38]; G documents at 89

1. In his earlier statement, Mr Nguyen said:

   “Wherever my mother and I go, we always stick together.  We live together.”[13]

   Contrary to that, Mr Nguyen did not see her son for some two years after he lost his job and Mrs Nguyen’s explanation for his absence was set out in her statement:

   “Anthony and I did not see each other for around two years after he lost his job at Qantas.  I believe he was feeling guilty at having lost the job as I helped him get it.  I believe he was also feeling ashamed that he embarrassed me and was not supporting me.  He continued to support me during this time however.  I do not know what he was doing, but many times I would come home and there would be grocery items in the house or I found money he left for me.  The next time I heard about him was when the police called me in 2012 and told me he was in gaol.  He had given them my details, which is why they called me.  Anthony was sentenced to nine-months in gaol, after which he came home to live with me.  He stayed with me until he went to gaol again in 2014.”[14]

   [13] Mr Nguyen’s statement 1 August 2017 at [39]; G documents at 89

   [14] Exhibit A; Statement of Mrs Nguyen at [8]

1. Mr Nguyen’s memory of events is a little different in that he said the police told his mother that he had been arrested on 19 July 2011.  She waited for him until he was released after being interviewed by the police and went to live at her house until he was sentenced to a term of nine months’ imprisonment.  On his release, he lived at his mother’s house until he was arrested in or about February 2015.

1. In November 2013,[15] or perhaps 2012,[16] and after he had been convicted in 2012 of two counts of possessing cannabis and of cultivating cannabis plant, Mr Nguyen was again employed by Qantas. In May 2014, Qantas let Mr Nguyen go after it received the results of its criminal record check. Staff working for Qantas at the airport are required to have clear criminal records.[17] 

   [15] Exhibit A; Mrs Nguyen’s statement dated 21 November 2018 at [9]

   [16] Mr Nguyen’s statement 1 August 2017 at [38]; G documents at 89

   [17] Exhibit A; Statement of Mrs Nguyen at [9]

1. Mrs Nguyen said that her son then obtained employment at the Park Royal Hotel but left it in January 2015.  Mr Nguyen said in his statement dated 1 August 2017, that he also worked as a night time receptionist and security guard at a city hotel.  In 2012, he also took up a job using his IT skills as a part-time technician repairing televisions and computers.  At the same time, he was undertaking his studies at RMIT.   

Life with Ms Pham

1. In 2009, Mr Nguyen met Ms Pham, who was to become his wife.  They met through mutual friends when she was undertaking university studies in Vietnam.  They spoke with each other every day.  Mr Nguyen and Ms Pham became engaged in 2013.  He then sponsored his wife to come to Australia on a prospective spouse visa.  She arrived on 28 February 2014 and they married on 26 March 2014 in front of their family and close friends.[18]  At the time, Mr Nguyen was still working for Qantas at the airport and he continued to do so until May 2014.

[18] Exhibit A; Statement of Ms Pham at [7]

1. Ms Pham worked for nine months as a casual employee with a hotel in Melbourne and now works full-time as a barista for Qantas at the airport.  I return to Ms Pham’s circumstances below.

Travel to Vietnam 

1. Since arriving in Australia, Mr Nguyen has returned to Vietnam on eleven occasions.  The first occasion occurred in October 2009 when he left Australia on 17 October 2009 and returned on 24 October 2009.  On the last occasion, he left Australia on 22 January 2015 and returned on 5 February 2015.  The Movement Details maintained by the Department of Home Affairs (Department) record the following movements made by Mr Nguyen after he arrived in Australia.[19]  Where the information is available, the entries are interspersed with the reasons for his travelling to Vietnam.

   [19] G documents at 181-183

Depart Australia	Country visited	Return to Australia
17 October 2009	Vietnam	24 October 2009
Mr Nguyen met Ms Pham through mutual friends while she was at University studying a banking and finance degree.  They connected because they had similar backgrounds; both their fathers gambled and they were raised in impoverished circumstances.
1 June 2010	Vietnam	12 June 2010
2 October 2010	Vietnam	7 October 2010
12 January 2011	Vietnam	25 January 2011
10 May 2011	Vietnam	25 May 2011
29 July 2011	Vietnam	24 August 2011
30 July 2012	Vietnam	15 September 2012
27 November 2012	Vietnam	11 December 2012
13 February 2013	Vietnam	4 March 2013
4 June 2013	Vietnam	13 August 2013
In June 2013, Mr Nguyen and Ms Pham became engaged while he was visiting Vietnam.[20]
13 October 2014	Vietnam	19 October 2014
22 January 2015	Vietnam	5 February 2015
Mr Nguyen said that he made this trip to Vietnam in order to pray for his grandfather, who had died on 16 January 2015 and to visit Ms Van Tran’s family because her father had been killed in a motorbike accident on 9 January 2015.[21] Ms Pham said that she and Mr Nguyen travelled to Vietnam in 2015 for two weeks for their traditional wedding ceremony in her home town.[22]

[20] Mr Nguyen’s statement 1 August 2017 at [61]; G documents at 91

[21] Record of interview with Victoria Police dated 20 February 2015: Supplementary Relevant Documents (SR documents) at 283

[22] Statement dated 21 September 2017 at [13]; G documents at 154

Convictions

1. In this section, I set out the offences of which Mr Nguyen has been convicted.  I have also included further details that he gave about those offences when giving evidence.  The record is also incomplete in so far as I have not been able to find all of the dates on which each of the offences for which Mr Nguyen was convicted was committed.The tenor of the documents relating to the offences is reflected in the material that I have incorporated in the table.  I have included some details of Mr Nguyen’s employment in the table.

Date of Conviction	Court	Date of Offence(s)	Offence (counts)	Result
Mr Nguyen was employed as a casual kitchen hand by Qantas from 2009 until February 2010. He was then without employment for three or four months until he found casual work on farms in Victoria.
22 June 2012	Melbourne County Court	19 July 2011	Possess cannabis	7 months’ imprisonment.
Cultivate narcotic plant – cannabis Possess cannabis	3 months’ imprisonment on each count.  2 months of each count concurrent and concurrent.
Cultivate narcotic plant - cannabis	1 month’s imprisonment concurrent.
Have in custody a false document (a driver’s licence)[23]	7 days’ imprisonment concurrent. (The total effective sentence was nine months’ imprisonment.  That sentence equated with the time spent by Mr Nguyen in custody between his arrest on 19 September 2011 and date of sentencing on 22 June 2012.[24])
Mr Nguyen said that his first conviction for cannabis cultivation resulted from a gambling debt.  He had begun gambling when he lost his job with Qantas and did so almost every day.  He found the lights and sounds of the pokie machines too enticing.  He said at the hearing that he thought that, if he could win once, it would be enough to support his mother and him.  In his earlier statement, Mr Nguyen said that he met a man named Mr Cuong at the Casino.  Mr Cuong Do offered to lend him a few hundred each day.  It added up to $18,000.  Mr Nguyen said that he did not think about it and just wanted to recoup his losses at that point.  Mr Cuong Do told him about a job that would require him to go to a house and water plants.  Completing that job would clear his debt.  At the time, he was earning $120 per day on a farm and Mr Cuong Do’s offer seemed to be an offer made by a very kind and generous person.  Mr Nguyen said: “At the time, honestly, I did not realise that what I was doing was illegal, although I think I knew I should not be doing it.”[25] The Incident Summary Report taken from Victoria Police’s  LEAP records stated: “At 2340 hours 19/7/2011, police intercepted vehicle … in Charles Street, Sunshine North.  Police located a bag of dried cannabis in a garbage bag on the passenger seat of this vehicle.  The driver was arrested and conveyed to Sunshine Police Station. … Cannabis weighed at 780 grams approximately.  As a result of items found in Nguyen’s care, police executed a DPCSA warrant at … At this address police located in hydroponic cannabis crop consisting of 151 plants with an electricity bypass. Nguyen interviewed and made full admissions to cultivating and possessing cannabis.  Nguyen charged and bailed to appear at Melbourne Magistrates Court 25/07/2011 for filing hearing. …”[26]
25 September 2014	Sunshine Magistrates’ Court	7 February 2013	Unlawful assault Fail to answer Bail Granted	With conviction, fined an aggregate of $500.
In November 2013, Mr Nguyen gained employment with Qantas in its Lounge but lost it May 2014 when he Qantas obtained notice of his criminal record.
A summary of the offence appears in Victoria Police’s LEAP records: “On Thursday the 7th of February 2013, at approximately 12:10pm, the victim was walking across the pedestrian crossing on the Western side of St Kilda Road at the intersection of Kings Way.  At this time a white Honda Accord Sedan (Registration …) was being driven by the accused in a [sic] easterly direction on Kings Way. Whilst the victim was walking across the pedestrian crossing the accused has accelerated and come to a sudden stop at the intersection.  The accused began to verbally abuse the victim through the drivers window.  The victim has engaged in a conversation with the accused which culminated in the accused spitting on the victim through the driver’s side window and driving off.  The victim has managed to take a photo of the accused’s registration and a photo of the accused in the drivers [sic] seat of the vehicle. At approximately 12:15pm the victim attended the St Kilda Road Police Station to report the assault. On Thursday the 7th of February 2013, at approximately 3:12pm the accused attended the St Kilda Road Police Station by appointment.  A field interview was conducted with the accused.  During the interview the accused made no admissions to the assault on the victim. Reason for Unlawful Assault: ‘No reason.  I didn’t spit on him.’”[27] The victim’s statement indicates that Mr Nguyen described the victim as a “fucking idiot” and that the victim and he then traded that insult between them with the last one being delivered by Mr Nguyen together with spitting on the victim.
After he lost his job at Qantas, Mr Nguyen was employed by the Park Royal Hotel but he left it in January 2015.
13 May 2016 (Offered to plead guilty on 20 February 2016 and pleaded guilty 20 February 2016.[28])	County Court	25 November 2014 to February 2015[29]	Cultivate narcotic plant commercial quantity - cannabis	4 years’ imprisonment. Non parole period of 2 years 6 months.  Declared a period of 448 days already served by way of pre-sentence detention.  Property forfeited.
See below at [25] to [34]
5 May 2017	Supreme Court	Appeal from sentence imposed by County Court	Sentence affirmed.[30]

[23] G documents at 34-35

[24] G documents at 35

[25] Mr Nguyen’s statement 1 August 2017 at [86]; G documents at 93

[26] SR documents at 446

[27] SR documents at 107

[28] G documents at 34

[29] G documents at 30-33 and 35

[30] SR documents at 452

Sentencing remarks relating to conviction in County Court on 13 May 2016

1. In sentencing Mr Nguyen in respect of his most recent convictions, Judge Pullen of the County Court made comprehensive sentencing remarks.  There was some discussion amongst the prosecution, defence and Judge Pullen in view of Mr Nguyen’s evidence as to his involvement and his having pleaded guilty to having cultivated cannabis in a commercial quantity.  There was no disagreement that Mr Nguyen and Ms Van Tran went to a real estate office where they completed a 12 month Residential Tenancy Agreement and Bond Lodgement form for the rental of a house in Doncaster from 25 November 2014.  Ms Van Tran used the name “Hana Nguyen” on the lease.  They paid a bond and one month’s rent in advance.  Mr Nguyen paid a further $1,600 in cash for rent on 22 January 2015. 

1. After neighbours complained about barking dogs left on the property, police entered the house and discovered three rooms devoted to hydroponic cultivation of cannabis.  In all, there were 86 plants with a total weight of 91.397 kilograms.  Seventeen of the plants were mature, or close to maturity, with leaves and flowering heads weighing approximately 45.6 kilograms.  That equated with an air-dried weight of approximately 11.4 kilograms.  Had the remaining plants been permitted to grow to maturity, it was estimated that they would have yielded from 31 to 63 kilograms, when air-dried, of leaves and flowering heads.  Electricity had been connected to the house on 28 November 2014 but electricity had then been directed to the house by means of an illegal meter bypass.  The energy supplier estimated that the electricity supplied by means of that illegal meter bypass was 40085 KWh at $0.2300 per KWh at an estimated total cost of $10,141.50 inclusive of GST.[31]

   [31] G documents at 31-32 and SR documents at 187-190

1. When interviewed by police on 20 February 2015, Mr Nguyen said that he had met Ms Van Tran in approximately June or July 2014 when she arrived at the airport.  Her friend had not been at the airport to meet her and things moved from there.  Ms Van Tran was a student and he first helped her with her studies, then took her to dinners and, ultimately, they commenced a relationship.[32]  In October 2014, Ms Van Tran told Mr Nguyen that she was pregnant.

[32] Mr Nguyen’s statement 1 August 2017 at [89]; G documents at 93

1. Mr Nguyen told the police, that Ms Van Tran had asked him to pay her school fees.  When he refused to do so, she told him that Mr Cuong Do had paid them.  Mr Nguyen told the police that Mr Cuong Do had arranged the house at Doncaster so that Ms Van Tran could live there.  It was Mr Cuong Do who had paid the bond and the rent but he, Mr Nguyen, had kept copies of the rental documents at the house he shared with his wife (his home). 

1. In his earlier statement and at the hearing, Mr Nguyen described Ms Van Tran’s debt to Mr Cuong Do as a “gambling debt”.[33]  Mr Cuong Do had offered her the same arrangement as he had made for him in order to repay the debt.  He said:

   “… When she fell pregnant, I had to find a house for her to live using my ID and payslips, and I was afraid my wife would discover what I had done if I did not support Van.  She lived in that house and did the watering of the cannabis for Cuong.  Van Tran’s pregnancy ended.

   When I was interviewed by police the second time, I told them what I did; I paid the rent for Van Tran and arranged the house.  I had no connection with the substance or any business – I did not receive any benefits, or have any involvement, at all.  I knew that the house was being used to grow cannabis.  I cannot believe I did this.  It disgusts me.

   I just felt overwhelmed.  I did not want my wife to know about the situation.  I panicked and was stupid.  This is behaviour that is out of character and that I deeply regret.

   I felt so stupid and ashamed to make the same mistake.  I was afraid about what might happen to my family and I about the debts and about the affair I had.”[34]

   [33] Mr Nguyen’s statement 1 August 2017 at [89]; G documents at 93

   [34] Mr Nguyen’s statement 1 August 2017 at [89]-[91]; G documents at 93-94

1. He had also kept items similar to those used in the hydroponic set-up at the Doncaster house in his garage at his home.  Mr Nguyen told police that Mr Cuong Do had asked him to store them at his home.  He knew that they were used for the purpose of cultivating cannabis and he also knew that cannabis was being grown at the Doncaster house.  His reason for not reporting that to police was that Ms Van Tran was “finishing a crop” in order to repay her gambling debt to him.  Mr Nguyen said that he had used a toothbrush that the police found at the Doncaster house.

1. Mr Cuong Do was located by police and said that he was the owner of a driver’s licence found at Mr Nguyen’s home.  He had lost it some two years earlier, he told police.  Mr Cuong Do denied knowing Ms Van Tran and declined to make a statement as did Ms Van Tran when she returned to Australia on 20 July 2015.  She had previously left Australia for Vietnam on 14 February 2015.

1. Ultimately and after a contested committal on 25 June 2015, Mr Nguyen pleaded guilty to cultivation of a commercial quantity of cannabis.  He said in reply to Mr Rogers in cross-examination that he had not pleaded guilty at an earlier time because he was guilty but not of the charge that had been laid.  From the very first day, he had told the police about Mr Cuong Do and Ms Van Tran but they had not been arrested. 

1. Judge Pullen sentenced Mr Nguyen on the basis that:

   “… there was no proof you actually physically tended the crops.  Your involvement included signing the relevant lease documentation for the property, attending the property on a number of occasions, being aware the property was used for cultivation of cannabis, and providing cash payment of rent each month to the estate agent.  As for the involvement of any other potential co-offenders, the prosecution described Ms Tran as being a minder of the crop, but beyond that there was no further description of her involvement, nor any proof of specific involvement of the person Cuong.

   In my opinion, to suggest any further particularisation of involvement of either Do or Tran in cultivation of cannabis at … Road [Doncaster], on the material before me cannot be ascertained.  The police, following investigation of both Do and Tran have not charged either with any offending relating to this property.  It may be that the police only became aware of the toothbrush and the clothing of Ms Tran following the interview with her, however they did not seek to re-interview her.”[35]

   [35] G documents at 36-37

1. There had been two previous occasions on which Mr Nguyen had appeared before the court although neither had been for a commercial quantity as it was on the third occasion.  She later described Mr Nguyen’s “… offending as very serious indeed …”.[36]  As to the reason for Mr Nguyen’s offending, Judge Pullen said that, in her opinion, no weight could be given to the submission that gambling was the reason for his offending.  As to the prospects of his rehabilitation, she said to Mr Nguyen:

   “… Given your repeated offending (albeit not previously for ‘commercial quantity’), and offending so soon after your most recent prior court appearance, I do have concerns about your rehabilitation prospects.  Obviously gaol has not deterred you.”[37]

   [36] G documents at 46

   [37] G documents at 44

Programmes completed

1. While being held in remand in the Metropolitan Remand Centre serving his first term of imprisonment, Mr Nguyen said that he could not have access to any rehabilitation programmes or services.  During her sentencing remarks, Judge Pullen referred to his having participated in two courses: Participate in the Workplace Safety Arrangements and Communicate with Others in Familiar and Predictable Contexts.  She described those courses as “meaningful rehabilitative courses” in her sentencing remarks.[38]

   [38] G documents at 43

1. Mr Nguyen has completed other courses since he has been incarcerated.  His evidence is that he has undertaken English courses, hospitality training, a course in industrial cleaning and IT courses.  The most useful courses were drug and alcohol treatment programmes and two courses completed in January 2018 with the first being a Talking Change Program and the second a Peer Listener Training Program.  The former included five modules: Considering the Possibility of Change; Openness to New Ideas; Costs and Benefits of Change; Old me/New me – Living Values; and Getting Ready for Change.[39]  The second programme extended over one and a half months and included the following modules: Expectations, Communications and Assertiveness, Conflict Resolution & Supporting Distressed Prisoners, Adjusting to Prison & Staying Safe; Mental Health Awareness, Risk of Harm/Suicide, Preparing for Release from Prison & Special Needs Populations; Confidentiality & Boundaries; Supervisions, Services & Making Referrals; and Burnout & Self-Care.[40] 

   [39] Exhibit A; Document 5.

   [40] Exhibit A; Document 6

2. Although he has never been addicted to drugs or alcohol, Mr Nguyen thought that the drug and alcohol programmes had helped him to address his gambling addiction.  He feels that he finally has the right skills to manage his gambling addiction. 

1. When he was at Middleton Prison, Mr Nguyen worked in the prison kitchen and also held a role as a Peer Listener.  It was a sought after role and the most highly paid of the prison roles.  He was a Peer Listener from January to June 2018.  In that role, he would induct new prisoners and show them around.  If a person had a drug problem or a gambling problem, he would help them to find the courses they could take and to find information that might assist them.  If a person were at risk of committing suicide, he would try to talk with them and to find them help.  At times, he took people so see doctors and nurses.

DIRECTION No. 65

1. Paragraph 6.1 of the Direction No. 65 begins with a statement of objectives but I will refer only to the first:

   “The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[41]

   [41] Direction No. 65 at [6.1(1)]

The objectives are followed by passages described as “General Guidance” and “Principles”.  The latter set the framework within which the individual considerations to be found in Parts A, B and C of Direction No. 65 are set.  They give those considerations their form, pattern and underpinning framework.  The Principles set out in paragraph 6.3 are:

“(1)     Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.  Being able to come to or remain in Australia is a privilege Australia confers on non‑citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable.  In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time.  However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non‑citizen’s visa should be cancelled, or their visa application refused.”

1. Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:

   “Informed by the principles in paragraph 6.3 above, a decision-maker:

   a)must take into account the consideration in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or

   b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”

Parts A and B do not apply in this case for they apply, respectively, when a non-citizen’s visa has been cancelled and when his or her application for a visa has been refused. Part C does apply in Mr Nguyen’s case for it is directed to revocation requests made in relation to cancellation decisions made under s 501(3A).

1. In applying any of the Parts, including Part C, paragraph 8 of Direction No. 65 sets out how the considerations are to be applied by a decision-maker.  Decision-makers must take into account the primary and other considerations relevant to the individual case.[42]  The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):

   “… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”

   [42] Direction No. 65 at [8(1)]

1. In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[43]  Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … cancellation of the visa …”.  Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[44] 

   [43] Direction No. 65 at [8(2)]

   [44] Direction No. 65 at [8(4)] and [8(5)]

CONSIDERATION

1. Part C begins with three considerations that are characterised as primary considerations: the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community.  Each of these considerations is developed in paragraph 13 of the Direction.

Protection of the Australian community

1. The first primary consideration relating to the protection of the Australian community begins with the general statement:

   “When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.  Remaining in Australia is a privilege that Australia confers on non‑citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.  Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.”[45]

   [45] Direction No. 65 at [13.1(1)]

1. That statement makes clear that the person’s conduct, past and future, is relevant.  That is stated expressly in paragraph 13.1(2) when decision-makers are told that they:

   “… should also give consideration to:

   a)The nature and seriousness of the non-citizen’s conduct to date; and

   b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”

A.       The nature and seriousness of Mr Nguyen’s conduct

1. Paragraph 13.1.1 goes on to expand on the nature and seriousness of the non-citizen’s criminal offending or other conduct to date.  It sets out a number of factors to which a decision-maker must have regard in considering this matter.  In the circumstances of this case, the following factors may be relevant:

   “a)       The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

   b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   c)The sentence imposed by the courts for a crime or crimes;

   d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   e)The cumulative effect of repeated offending;

   f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

   g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

   h)Where the non-citizen is in Australia, that a crime committed while the non‑citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act; [sic]”.[46]

   [46] Section 197A of the Migration Act states that “A detainee must not escape from immigration detention.  Penalty: Imprisonment for 5 years.”

   A.1      Consideration

2. Mr Nguyen does not agree with Judge Pullen’s characterisation of his offending as being “…very serious indeed”.  In saying that, he was comparing his offending with the offending of others whom he met in gaol.  People import cocaine from the United States of America.  That is a serious crime.  Growing cannabis is drug-related but it is not serious, to his understanding.  There is a difference between cannabis and other drugs but Mr Nguyen said that he did not rely on that to mitigate his offence.  He also agreed that it was significant that he had committed the same offence again when he had earlier been found with dried cannabis and some 150 plants were discovered.

1. On his behalf, Mr Kenneally submitted that Mr Nguyen’s background goes to his moral culpability and the seriousness of his offending.  He referred to Mr Nguyen’s troubled childhood and to the assessment of him by Dr Peter Cook, Clinical Psychologist, as an emotionally vulnerable man due to that troubled childhood.  Mr Kenneally relied on [7] and [8] of Dr Cook’s report dated 18 December 2017 but I will refer also to the two preceding paragraphs:

   “5.       Based on the information available to me it appears that aside from the three instances in which he offended, Mr Nguyen has led a positive life.  Despite the circumstances of his childhood he managed to undertake graduate studies in Russia and worked consistently in Australia after migration.  His report suggested that within Australia he had integrated well in the community and had been involved in volunteer work.

   6.It appears the Mr Nguyen’s offending behaviours occurred because, as a relatively young man, he made poor decisions when he found himself in difficult life circumstances. In the first instance he incurred gambling debts which worsened as he engaged in ‘chasing’ to try to recoup his losses. His debts brought him into contact with an individual who offered him a way to repay his debts; this involved watering cannabis plants. When apprehended Mr Nguyen readily acknowledged his guilt.

   In the second instance he was involved in an extra-marital affair and said he supported the woman when she became pregnant. She incurred gambling debts and became involved with the same man as he had previously. Mr Nguyen said he felt he had to support the woman, as he feared failure to do so might result in his wife discovering the affair.

   I note that the presiding Judge accepted that Mr Nguyen had a very limited role in the cultivation of cannabis and that his main involvement had been renting the house and paying the rent.

   7.It is relatively common for individuals who have experienced significant childhood trauma to be unsettled and impulsive during their early adult years.  Often such individuals lack judgement and make significant mistakes in their lives.  However, many such individuals eventually mature and go on to live productive lives.

   8.There was no indication from the history provided or other information to suggest that Mr Nguyen has psychopathological tendencies or the like, and I am of the opinion that his behaviour is more in keeping with the dynamics described in the previous paragraph.  He became overwhelmed when he lost money gambling, and once again he became involved in an affair.  In both instances he chose ‘solutions’ that led to his predicament worsening.  Mr Nguyen said that he has used his time in prison to reflect and has realised that in future he needs to deal with problems in a direct and open manner.

   9.-14.…

   15.Given the reported circumstances of Mr Nguyen’s childhood, in many respects he has made a positive adjustment.  He has made progress with respect to studies, has maintained a good employment history and sustained family relationships.  I note the various referees also have attested to his past positive behaviour and character.  As noted above, he has made some extremely foolish decisions when he has become involved in difficult life circumstances and these have led to his offending behaviour.”

1. Putting aside moral culpability for the moment, I regard the crime for which Judge Pullen sentenced Mr Nguyen to be a serious crime.  It is not a crime that involved his growing a cannabis plant or two for personal use or using it.  It cannot be viewed simply by reference to his having signed the lease of the house and, even if at Mr Cuong Do’s request, having obtained a document giving details of his employment so that it could be used to secure the lease of the house in Doncaster.  It cannot be viewed simply by reference to his obtaining the lease so that Ms Van Tran would have a place to live when she was pregnant with his child.  As Judge Pullen found, Mr Nguyen was aware that the property was being used to grow cannabis.  It was his understanding that Ms Tran was minding the crop so that she could repay her debt to Mr Cuong Do.  He had also repaid a debt to Mr Cuong Do by being involved in the growing of cannabis.  Mr Nguyen’s actions were simply one set of actions necessary to grow the crop which, would then be harvested.  Given that it was grown in a commercial quantity, I infer that it would have been dried and sold.  Mr Nguyen may have only had one part to play in the enterprise but it was an important part.

1. There is no evidence of any plans regarding the sale of the cannabis crop or of any involvement of those engaged in the sale with organised crime groups.  As a general proposition, it can be said that organised crime groups do maintain a strong presence in the cultivation of cannabis.[47] 

   [47] Extract from notes published by the Australian Criminal Intelligence Commission (ACIC) and entitled “Illicit drugs” and handed up at the hearing:

1. The imposition of a four year sentence for a first offence of growing cannabis on a commercial scale[48] is not a light sentence.  But for his guilty plea, Judge Pullen would have imposed a sentence of five years and six months with a four year non-parole period. 

[48] Mr Nguyen’s previous convictions had not related to his growing cannabis on a commercial scale.

1. With his awareness of the crop and his continuing visits to it, however infrequently, he permitted the house leased in his name to be used to grow cannabis. He provided the place at which it could be grown.  Without such a place, it could not be grown.  It may be that another place would have been found but the fact remains that it was grown at the place leased in Mr Nguyen’s name and for which he kept the lease documents at his home.  It may be that Mr Cuong Do gave him the money to pay the rent but he was the one who paid it.  He took his dog and Ms Pham’s dog to the property and left them there to protect Ms Van Tran whom he knew was minding the crop.

1. I recognise that there are differing views held by members of the Australian community regarding the use of cannabis but this is not a case in which I can have regard to those differing views.  Parliament has created an offence of cultivating a narcotic plant in a commercial quantity.  It has set a maximum penalty of 25 years’ imprisonment.  In doing so, Parliament will have had regard to various policy issues relating to matters such as law enforcement and private and public health, but it is its prescription of certain acts or omissions as crimes that make them so and the way in which the community regards the morality of those acts or omissions becomes of no relevance.  This was explained by Lord Atkin in Proprietary Articles Trade Association v Attorney-General for Canada:[49]

   “Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State.  The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences?  Morality and criminality are far from coextensive; nor is the sphere of criminality necessarily part of a more extensive field covered by morality - unless the moral code necessarily disapproves all acts prohibited by the State, in which case the argument moves in a circle. …”[50]

   [49] [1931] AC 310 at 324

   [50] The imposition of a penalty does not make a prohibited act or omission a crime for there is a distinction between a penal statute and a criminal statute: see, for example, Gapes v. Commercial Bank of Australia Ltd (1979) 27 ALR 87 at 112 per Deane J

1. Moral culpability is always in issue when a person has:

   “… a disease, disorder or defect of the reason.  If that exists, its operation in depriving the subject of a knowledge of the moral qualities of his act must be considered.  It is then that it becomes important to understand what degree of capacity to think whether his act is wrong is required. …

   The conditions of irresponsibility must exist at the time when the prisoner commits the acts with which he is charged. …”[51]

   [51] Sodeman v The King (1936) 55 CLR 192 at 215-216 per Dixon J

2. If lacking capacity to think whether the act was wrong, what would otherwise be a criminal act is not characterised as such.  It follows that a child of tender years[52] is regarded as lacking that capacity and so cannot be convicted of a crime.  Even if a person’s capacity is not such to deprive an act or omission of its criminal character, his or her capacity may mitigate the sentence imposed.[53]

   [52] What amounts to “tender years” may vary from place to place.

   [53] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [27]-[32] per Maxwell P, Buchanan and Vincent JJA

1. As for a person’s criminal offending, capacity, and so moral culpability, is relevant in sentencing but not to the extent that it leads to the imposition of a sentence disproportionate to the gravity of the offence for which the person is being sentenced. 

   “…  The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. …”[54]

   [54] Veen v The Queen (No. 2) (1988) 164 CLR 465 at 477 per Mason CJ, Brennan, Dawson and Toohey JJ

1. In Betkhoshabeh v Minister for Immigration & Multicultural Affairs,[55] Finkelstein J said that, in considering whether a refugee had committed a “particularly serious crime” within the meaning of Article 33 of the Refugees Convention:

   “… The Tribunal should have considered the extent to which that psychological illness reduced the moral culpability of the appellant in much the same way as his psychological illness was taken into account in sentencing the appellant for having committed those offences …”.

   [55] [1998] FCA 934

1. Mr Nguyen’s moral culpability was not a factor considered by Judge Pullen although she considered matters personal to him, his prospects of rehabilitation, general deterrence, prior relevant history of offending, protection of the Australian community and the manifestation of the community’s denunciation under the Sentencing Act 1991 (Vic). I do not think that these matters or his difficult childhood and early life in Australia diminish Mr Nguyen’s moral culpability or the seriousness with which I should view the offence of which he was convicted. Even accepting that he was trying to help his girlfriend, he knew what he was doing was wrong. He had done it before and been imprisoned before. He had not learned from his engagement with smaller amounts of cannabis and had moved on to a commercial quantity. He knew that the equipment he stored at his home was used in growing crops hydroponically and he knew that equipment of that sort was used at the house at Doncaster. On his evidence, he had worked with Mr Cuong Do previously in growing cannabis and been convicted. He had also not learned from his previous brush with the law regarding his interaction with a pedestrian on the crossing at the intersection of St Kilda Road and Kings Way. His court appearance and conviction arising out of those events had occurred in September 2014 and, two months later, he had placed himself in a position in which a house was leased in his name and using his employment details for the purpose of growing cannabis.

   B.The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

1. Paragraph 13.1.2 of Direction No. 65 states:

   “(1)     In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.  Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

   (2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

   a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).”

B.1.     Consideration

1. Although I have found that there is no evidence pointing to Mr Nguyen’s or to the crop’s being connected with organised crime, cannabis is one of the drugs that is the subject of the National Drug Strategy 2017-2026 (Strategy).  The Australian cannabis market is large and entrenched with organised criminal groups and individuals maintaining a strong presence in the market.[56]  The Strategy identifies various health, social and economic harms arising from alcohol, tobacco and other drugs, including cannabis.  Harms include injury, mental health problems, road trauma, violence and other crimes, engagement with the criminal justice system, child/family wellbeing, healthcare and law enforcement costs, decreased productivity, associated criminal activity and reinforcement of marginalisation and disadvantage.[57] 

[56] Information document prepared by ACIC entitled “Illicit drugs”: National Drug Strategy 2017-2026 handed up at the hearing at 4-5

1. The offences that Mr Nguyen has committed have been directed to supplying the market which, in 2016-2017 included those who had been detained by police and who undertook a voluntary self-reporting survey regarding their drug use or who voluntarily provided a urine sample.  The proportion of those persons who tested positive by way or urine testing was 46.7%.  Those who self-reported their cannabis use was 58.6%.  Those figures had remained fairly stable over the previous decade.[58]

   [58] Illicit Drug Data Report 2016-2017 prepared by ACIC and handed up at the hearing at 45

2. Dr Cook addressed the likelihood of Mr Nguyen’s committing further offences in his report dated 26 November 2018.  He set out Mr Nguyen’s history in terms similar to those in his earlier report.  Mr Nguyen told Dr Cook that he had reflected on his time while in prison and realised that he needed to deal with his problems in a direct and open manner.  He wants to live a life that fully makes amends for his past offending.  He is deeply concerned for the welfare of his mother and he has taken every step while in gaol to improve himself.  He has a clear plan after his release and would not hesitate to seek the assistance of others.  He also told Dr Cook that his involvement with Gamblers Anonymous would increase.

3. Dr Cook concluded:

   “I am of the opinion that Mr Nguyen is essentially a man of good character, although one who has made significant errors of judgement that have led to his offending behaviour.  However given his overall history and current approach I consider that there is an extremely low probability that he will reoffend.  Mr Nguyen is an intelligent man who has a clear understanding of the consequences if he was ever caught offending again.  He appears committed to his wife and mother and it appears extremely unlikely that he would undertake any action that would jeopardise his involvement or capacity to care for them.  I am of the opinion that there are strong grounds on which to conclude that Mr Nguyen is unlikely to reoffend.”[59]

   [59] Exhibit A; Report of Dr Cook dated 26 November 2018 at [15]

4. In Dr Cook’s opinion, according to nearly all of the indicators relating to the risk of recidivism, Mr Nguyen poses a low risk.  His past history of offending has not included particularly serious offences and he has not been involved in substance abuse.  He has positive social connections and has plans and optimism regarding the future and positive employment prospects.  In reaching his conclusion, Dr Cook accepted that the offence at the intersection of St Kilda Road and Kings Way had been a purely verbal altercation associated with a traffic incident.  Mr Nguyen had adamantly denied spitting on the other man, Dr Cook recorded.  Given the circumstances of Mr Nguyen’s upbringing and his resultant emotional difficulties, Dr Cook found that it was not entirely surprising that he was not the most balanced or considered young man.  He did not consider his offending anywhere near the upper end of seriousness.  While Dr Cook concurred with Judge Pullen that Mr Nguyen’s most recent offending was very serious, he also noted her comment that his involvement was limited and that her sentence was at the lower end of the scale of possible sentences.  It was noteworthy that Mr Nguyen had not had involvement with more serious drugs and his own reported use of cannabis had been limited.  Finally, Mr Nguyen’s reflections on his past behaviour and his attempts at rehabilitation within the prison system lent considerable weight, Dr Cook said, towards his opinion that his risk of re-offending was extremely low.

5. In considering Dr Cook’s opinion, I have noted that he has accepted that Mr Nguyen did not spit on the pedestrian and that their interaction was purely verbal.  That is consistent with the way in which Mr Nguyen described events to me at the hearing.  He rejected the photographic evidence of the pedestrian wearing what appeared to be a stained shirt[60] by stating that the pedestrian had changed his shirt before going to the police station.  His assertion that the pedestrian was wearing a pink, and not a light blue, shirt is consistent with what he told the police at an interview on 7 February 2013.  Although the photograph is not reproduced in colour, the Constable who took Mr Nguyen’s statement on that day had also photographed the pedestrian’s shirt at the police station.  He had seen what appeared to be fluid on the shirt and he took the photographs approximately ten minutes after the altercation had taken place.  The Constable stated that a photograph taken by the pedestrian of the car and its driver[61] depicted what appeared to him to be the pedestrian wearing a light blue shirt.

   [60] SR documents at 123-124

   [61] SR documents at 122

6. Mr Nguyen’s evidence at the hearing is consistent with that set out in his statement to the police on 27 August 2013.  He said that he had been driving down Kings Way and had the green light to cross St Kilda Road.  He continued:

   “… I saw a man J walking across the road.  I slowed down the car and I noticed him walking past the red light not on the pedestrian crossing.  I saw the man on the phone.  I slowed down and the red light came on so I stopped.  I wound down the window and said ‘Can you see the red light or not?  Watch out for cars.’  The man then looked around and give me the middle finger.  I said ‘You need to go back to primary school and learn the rules.  You are an idiot.’  After I said that he stopped.  The man hang up the phone and said ‘What’s wrong?’ whilst standing in the middle of the road. I pointed at the red light and said ‘Can you see anything?’  He said ‘What’s wrong?’  I said ‘You’re a fucking idiot.’  He said ‘You’re a fucking idiot you bloody Asian.  Go back to your country.’”[62]

   [62] G documents at 118

7. The difficulty that I have with Mr Nguyen’s view of events is that I am left wondering why he pleaded guilty to the offence of unlawful assault at all if he did not spit on the pedestrian. Unlawful assault is an offence under s 23 of the Summary Offences Act 1966 (Vic) (Sentencing Act).  The penalty is specified to be 15 penalty units (i.e. $2,214.15) or imprisonment for three months.  On his evidence, he spoke only words.  Words on their own do not constitute the offence of assault unless the other person apprehended immediate and unlawful violence.[63]  There is nothing in the material that suggests that the pedestrian apprehended immediate and unlawful violence.  Indeed, the pedestrian felt able to photograph Mr Nguyen, who remained sitting in the driver’s seat of his vehicle, as well as the back of the vehicle.  Spitting has been held to be capable of assault.[64]  On the material that I have, I can only conclude that the magistrate was satisfied that Mr Nguyen had spat at the pedestrian.

   [63] R v Gabriel [2004] ACTSC 30 at [130]; 117-118; Higgins CJ and see also Slaveski v State of Victoria & Ors [2010] VSC 441 at [228]-[240]; Kyrou J

   [64] A conviction for assault by spitting was not challenged in Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305; 42 ALR 609

8. Can I look behind the essential facts on which a conviction was based? That question has been considered in the context of ss 200 and 501 of the Migration Act in a number of cases including: Minister for Immigration and Multicultural Affairs v SRT[65] (SRT) in which the Full Court of the Federal Court reviewed the earlier cases of Minister for Immigration and Multicultural Affairs v Daniele[66] (Daniele), Minister for Immigration and Ethnic Affairs v Gungor[67] (Gungor), Ridley v Secretary, Department of Social Security[68] (Ridley) and Saffron v Commissioner of Taxation (Cth)[69] (Saffron).  These cases were reviewed by Branson J in Minister for Immigration and Multicultural Affairs v Ali[70] (Ali). Her Honour was concerned with an order for deportation made under s 200.  In making the order, the delegate of the Minister had relied on some convictions as they met the criteria in s 201 but Mr Ali also had convictions which did not provide a basis on which to make a deportation order. 

[65] [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349, Branson, Lindgren and Emmett JJ

[66] [1981] FCA 212; (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135, Fisher, Davies and Lockhart JJ

[67] [1982] FCA 99; (1982) 42 ALR 209; 63 FLR 441, Fox, Fisher and Sheppard JJ

[68] (1993) 42 FCR 276, Spender, Gummow and Lee JJ

[69] (1991) 30 FCR 578, Davies, Lockhart and Beaumont JJ

[70] [2000] FCA 1385; (2000) 106 FCR 313; 62 ALD 673; 33 AAR 1 at [14]-[34]; 317-324; 676-683; 5-12

1. It is with that latter situation that I am concerned, for Mr Nguyen’s conviction for assault could not be the basis for mandatory cancellation of his visa under s 501(3A).[71] Branson J applied the principles she had drawn from the authorities and conclude that the way in which a decision-maker should, in reviewing a decision under s 200:

   “… treat a conviction and sentence (not being a conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635).  This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence followed a contested factual hearing.”[72]

   [71] It did not meet the criteria specified in ss 501(7)(a) to (c) so that he had a “substantial criminal record”. Only Mr Nguyen’s most recent conviction came within s 501(7)(c) i.e. “the person has been sentenced to a term of imprisonment of 12 months or more”.

   [72] [2000] FCA 1385; (2000) 106 FCR 313; 62 ALD 673; 33 AAR 1 at [43]; 325; 684-685; 13-14

1. In the case of Mr Nguyen’s conviction followed a plea of guilty.  He has proffered no evidence of what happened in the altercation between him and the pedestrian other than to repeat that he had not spat on him and that the pedestrian wore a pink shirt.  The latter was inconsistent with the Constable’s statement regarding the reflection of what appeared to be a blue, and not a pink, shirt in the car’s handle.  It is also inconsistent with the appearance of the shirt to the Constable and the appearance of the shirt.  In light of that, I am not satisfied that Mr Nguyen did not spit at the pedestrian.

2. As distasteful and socially unacceptable as spitting on a person is, the magistrate imposed a fine that was approximately one quarter of the maximum penalty and did not impose a sentence of imprisonment.  That suggests that he saw the offending as being at the lower end of the scale.  Of more concern to me in the context of this hearing is that, despite his having pleaded guilty to the offence, Mr Nguyen continues to deny an essential element of it.  I accept that he did not have a lawyer to advise him at the Magistrates’ Court but, in denying his having spat at the pedestrian, he indicates to me that he does not accept the consequences of his actions.  Even if he did not spit at the pedestrian, he accepted that he did when he pleaded guilty and that is the consequence of his actions to which I refer.  He gives me the same indication when he compares his conviction for cultivating cannabis on the last occasion with the convictions of others for drugs such as ice.  His involvement was limited, he said at the hearing, but I have found that securing the lease of the house was an essential element in enabling the cultivation to be undertaken.  His actions might have been few but his involvement was not limited.  By describing his involvement as limited, he appears to seek to diminish responsibility for his actions, which Judge Pullen characterised as serious.

3. In these matters, therefore, I find myself in disagreement with Dr Cook’s assessment of the way in which Mr Nguyen views his offences.  I have also looked to Mr Nguyen’s relationship and commitment to his family.  Dr Cook found him to be deeply committed to being a good son and a good husband.  I accept that he has expressed the desire to be so in the future but I have reservations about whether he has met his own expectations in the past.  His evidence regarding his mother has been inconsistent but, based on his evidence at the hearing and that of his mother, it would seem that he did not speak with her for two years after leaving her to live on her own in her car in a carpark.  Relationships are always difficult and his wish to be independent and to be regarded by his mother as independent is generally understandable.  Whether it is understandable when the fulfilment of his wish leaves her in a vulnerable situation because she is, for all practical purposes, homeless, is more difficult to understand.  They both agree that he left her money and food when he could but he denied her any emotional closeness by declining to answer her telephone calls for some two years between 2010 and 2012 and following his departure from the carpark.  This does not sit easily with his expressed concern for her wellbeing generally or in circumstances in which he knew that she had suffered abuse at the hands of her first husband and was now going through a divorce from her second.

4. Ms Pham married Mr Nguyen on 26 March 2014 but, three or four months later in June or July 2014, he states that he met Ms Van Tran, he helped her with her studies and then entered a relationship with her.  Despite having an affair only some six months or so into their marriage, Ms Pham said that she forgave her husband.  She said in her first statement:

   “18.     I understand the seriousness of my husband’s offending and I have no words to describe how disappointed I am by it.  In the eight years I have known my husband, I have always known him to be a loving, caring man of good nature.  I was deeply shocked when he was charged with criminal offences, as I know these offences are not in his character.  I believe these incidents occurred in the spur of the moment and I am disappointed in my husband for not thinking of the consequences of his action on his family and community.

   19.My husband, having now had time to think carefully, is devastated by his offending.  He had never done anything like this before: he is a kind, gentle, calm, welcoming man.  These convictions are not in his nature: they were out of his control because he was in a situation that felt outside his control.

   20.Knowing my husband, he will never allow himself to get into this situation again.  I don’t think he wanted to do it in the first place, but having learned from that, he will never do it again.

   21.We had a very big conversation after it happened.  I questioned him very strongly, and was very angry and upset.  He broke down and told me, I am really sorry’.  He said he did it because he became trapped.  He said, it was the most stupid thing he did in his life.  He thought if just got past that hurdle, and repay the debts and get out of the situation he had made by having an affair, he could return to normal life.

   22.I think he has really learned from all of this.  His friends were not really his friends.  He now knows family are the most important thing, as is integrity and proper behaviour.

   23.He sees how hard me and his mother work – I work thirteen hours a day.  He sees how sad we are because of what has happened.  He is extremely regretful about what happened.”[73]

   [73] G documents at 155

5. Ms Pham is forgiving but Mr Nguyen’s actions are not those of a maturing young man.  At the time he married, he was 28 years of age and, at the time of his most recent offence, 29 years of age.  He had spent three years in Moscow away from his mother and spent six years or so in Australia where he had been employed in a variety of work.  His past in Vietnam was a decade or so behind him.  I agree with Dr Cook that Mr Nguyen has made poor judgments but, unlike Dr Cook, I do not consider his risk of re-offending to be low but to be moderate.  I have come to that view on the pattern and nature of his offending and his attitudes to them even now that he has had the benefit of hindsight, maturation and programmes completed in prison.

1. Since 2010 when, on his evidence, that he did not understand that he should not have purchased duty free items for another employee in the Qantas kitchen and was let go by Qantas as a consequence, Mr Nguyen has been excusing his own behaviour.  It was the fault of another, he did not do it even though he pleaded guilty to an offence and, in the case of the cultivation of cannabis the crime is not as bad as others have committed. 

2. I find that the care and devotion of his wife and mother will not stop him from excusing his behaviour.  On their evidence, I find that he first met Ms Pham in 2009 and, on her evidence, I find that they “connected immediately” and spoke with each other every day.[74]  She was very much a part of Mr Nguyen’s life from that time even though she did not come to Australia in 2014 when they wed.  Therefore, she has been very much a part of his life since he lost his job with Qantas and through his offending.  Certainly, she was not physically present in Australia when he committed his last offence but she was present emotionally.

   [74] Statement dated 21 September 2017 at [6]; G documents at 153

   Best interests of minor children in Australia affected by the decision

3. Paragraph 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the bests interests of a child where an applicant relies on the effect that a decision leading to his or her not being permitted to be, or remain, in Australia may have an effect on a child in Australia.  That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made[75] but, in this case, there is no child in that position. 

   [75] Direction No. 65 at [13.2(2)]

Expectations of the Australian community

1. Paragraph 13.3(1) states:

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

A.       How are those expectations determined?

1. This question was at the heart of the consideration given to paragraph 13.3(1) by Mortimer J in YNQY v Minister for Immigration and Border Protection[76] when she said:

   “In substance this consideration is adverse to any applicant.  As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community.  In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes.  In this primary consideration as expressed (and despite the references earlier in the Direction to ‘tolerance’) the Australian community’s ‘expectations’ are defined only in one particular way: namely, that the Australian community ‘expects’ non-revocation where a person has been convicted of serious crimes of a certain nature.  That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community.  It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

   I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure.  It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).”[77]

   [76] [2017] FCA 1466

   [77] [2017] FCA 1466 at [76]-[77]

1. In the written submissions made on the Minister’s behalf, the following passage was concerned with YNQY and the expectations of the Australian community:

   “… Mortimer J held that this consideration was inextricably linked to the other primary consideration about protection of the Australian community, and that the expectations referred to in the Direction were those espoused by the Government in clause 13.3(1) rather than any objective expectations put forward by an applicant …”[78]

   [78] Statement of Facts, Issues and Contentions of the respondent at [31]

1. I note that the Minister did not rely on the statement in her Honour’s judgment that “It was inevitable that this consideration would weigh against revocation; that is what it is intended to do …”.  Having regard to the authority on which she relied, it seems to me that it does not support her statement in terms of inevitably.  The authority is Uelese v Minister for Immigration and Border Protection[79] (Uelese), in which Robertson J considered a decision to cancel Mr Uelese’s visa under s 501(2) of the Migration Act and said:

   “          In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government.  The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven ‘Principles’.  There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia.  It states that where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia, it may be appropriate to cancel the visa held by such a person.  Visa cancellation may be appropriate, the paragraph states, ‘simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa’.  The paragraph ends by stating that decision-makers should have due regard to the Government’s views in this respect.

   This ground of review does not attack the statements in Direction no. 65. In my opinion it is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community and for the Tribunal to act on that statement.”[80]

   [79] [2016] FCA 348; (2016) 248 FCR 296; 69 AAR 8

   [80] [2016] FCA 348; (2016) 248 FCR 296; 69 AAR 8 at [64]-[65]; 309; 22-23

1. Unlike the passage from YNQY, Robertson J does not refer to the inevitability of this consideration against revocation.  Indeed, the passage from his judgment is couched in terms of discretions that must be exercised, or judgments that must be made, by a decision-maker.  It refers, for example, to there being an “unacceptable risk” that non-citizens will breach the expectation that they will obey Australian law, that “it may be appropriate” that the visa is cancelled and that “Visa cancellation may be appropriate, the paragraph states, ‘simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa’.”  It is not couched in terms of inevitability of one outcome or another.    

1. I note that the passage from Uelese refers to paragraph 9.3.  That paragraph is concerned with cancellation of a non-citizen’s visa, but it is in the same terms as paragraph 13.3(1), with which YNQC was concerned in the context of a decision under s 501CA(3).  There is no distinction of substance to be drawn between the two paragraphs and it seems to me that I am required to have regard to their terms.  Paragraph 13.3(1), with which I am concerned and which was the subject of YNQY, is quite specific in its statement that the Australian community expects non‑citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa.  A consideration of what is an acceptable risk and what is not will be informed by the Principles set out in the current Direction.  Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind.  That is particularly so when regard is had to the general statement in 6.2(1) that:

   “… The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”

1. Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence.  Sometimes evidence will be found in what is said in any sentencing remarks, if they are available, but regard must be had to all of the evidence.  Ultimately, the judgment that a decision-maker comes to must be one that is able to be explained.[81] 

   [81] I explained the reasons for coming to this view in Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [60]-[72], which I adopt.

A.1     Consideration

1. The opening sentence of paragraph 13.3(1) makes very clear that it is the Government’s view that the Australian community expects non-citizens to obey Australian law.  It speaks of that expectation in terms of “trust” so that a judgment must be made as to whether there is an “unacceptable risk” that the non-citizen will breach that trust by not obeying Australia’s laws or whether the nature or character of concerns or offences already committed are such that the community expectation would be that the non-citizen should not hold a visa.

1. In this case, Mr Nguyen has committed only a handful of offences when compared with some, be they citizens or non-citizens.  What is of more concern is the nature of his most recent offence and the emerging pattern of his offences overall.  Mr Nguyen has graduated from cultivating cannabis and possessing cannabis to cultivating cannabis plant in a commercial quantity.  His first offence was committed in 2011 and a little over four years after he arrived in Australia.  His last was committed between November 2014 and January 2015.  I have already found that I do not consider the risk of his re-offending to be low.  Rather, I find that there is a moderate risk that he will re-offend in view of his pattern of offending, of his having done so with the same family support and network of friends that he has had in the past and with his continuing to excuse his behaviour rather than to take responsibility even now that he is in his 30s.  This is an unacceptable risk in the context of the Australian community’s expectation that non-citizens will obey the law.  Cultivation of cannabis in commercial quantities is a serious offence for the reasons I have given above.  Having regard to all of these matters, I have come to the view that the Australian community would expect that Mr Nguyen should not hold a visa to remain in Australia.

Other considerations

1. The five other considerations are summarised in paragraph 14(1):

   “a)       International non-refoulement obligations;

   b)Strength, nature and duration of ties;

   c)        Impact on Australian business interests;

   d)        Impact on victims;

   e)        Extent of impediments if removed.”

   A.       International non-refoulement obligation

1. A non-refoulement obligation is an obligation not to require a person to return, deport or expel a person to a place where he or she will be at risk of a specific type of harm.  Non‑refoulement obligations arise under a variety of international conventions.  Paragraph 14.1(1) states:

   “A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.  Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).  The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.”

1. A person may make claims which may give rise to international non-refoulement obligations in response to a notice of intention to consider refusing his or her application for a visa under s 501 of the Migration Act. Alternatively, a person’s claims might be clear from the facts of the case as would be the case if he or she has applied for a protection visa.[82]  This is not a case in which there is any suggestion that Mr Nguyen would be at risk of a specific type of harm were he to be returned to Vietnam.

[82] Direction No. 65 at [12.1(3)]

B.       Strength, nature and duration of ties

1. Paragraph 14.2(1) of Direction No. 65 states:

   “… Reflecting the principles at 6.3, decision-makers must have regard to:

   a)How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:

   i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and

   ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

   b)    The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).”

   B.1     Consideration

2. Mr Nguyen arrived in Australia in 2007 as a 22 year old.  He had already spent three years away from his family when he studied chemical engineering in Russia.  His mother arrived in Australia before him, and his wife after him, and both remain in Australia.  Two of Mr Nguyen’s friends have made Statutory Declarations of support for him.  Both state that they met Mr Nguyen through his mother.  Mr Janes moved into Mrs Nguyen’s house in 2009 to share accommodation with her and he continues to live in that house on a share basis.  He got to know Mr Nguyen very well when he was living there before and after his marriage.  Mr Janes believes that Mr Nguyen:

   “… was of good character and his personality to be generally quiet.  It was clear that he loved his family very much.  Anthony [Mr Nguyen] has also adopted the Australian way, following the politics, sports and Australian culture.  I think he loves and appreciates his country.”[83]

   [83] Statement of Mr David Janes dated 28 May 2017 at [6]; G documents at 99

3. Mr Janes has also written of the effect that cancellation of Mr Nguyen’s visa would have on those in the household.  He said that he knew about the nature of Mr Nguyen’s offences from talking with the police when they searched the house in which they all lived and continue to live.[84]  Mr Janes stated:

   “7.       If Anthony’s visa is cancelled and was forced to return to Vietnam I know that it would have a devastating effect on his mother as she loves Anthony very much.  He is her one and only child.  She works extremely hard so that she can support the running of the house and also try and set up Anthony in his future life.  I am very much of the opinion that if Anthony was sent back to Vietnam the mother’s health would be greatly affected, her depression would be at a very high level in which in turn would mean she not be able work, properly becoming very ill.

   8.Tracey [Ms Pham] would also be greatly affected.  I very much believe that they love each other very much and as they plan to start a life together (with Anthony’s mother’s support) to set up their own family this could ruin their lives.  Cancellation also would have serious effect on her health as currently she is working extremely hard also to support her husband.

   9.If Anthony was forced to return to Vietnam, he has no family to help him readjust to life, no accommodation, no job. It would be very hard to survive with no family help, and with the suffering of his family in Australia.

   10.I myself would not want to see Anthony sent back to Vietnam as would have an immediate effect on all living at this house.”[85]

   [84] Exhibit A; Statutory Declaration dated 21 November 2018 at [8]

   [85] Statement of Mr David Janes dated 28 May 2017; G documents at 99

4. Mr Robert Whinfield made a Statutory Declaration in support of Mr Nguyen.  He also knows Mr Nguyen through Mr Nguyen’s mother and has done so for the past five or six years or so.  Mr Whinfield also spoke of Mr Nguyen’s close ties to his mother, wife and friends in Australia.

5. Three of Mr Nguyen’s former bosses wrote in support of him.  Each referred to his being a valuable member of staff working in the hospitality sector.  He was a hard worker and, Mr Geoffrey Laws from Qantas, regarded him as “… a kind and humble gentleman.  He has a big heart and I really admire the way he cares for his family.  He always came to work with such a positive disposition, and nothing ever seemed to be too much trouble for him. …”.[86]   Mr Laws had also worked with Mrs Nguyen and Ms Pham and could not speak highly enough of them.  Each of them spoke of the difficulties that would face Mrs Nguyen and Ms Pham if Mr Nguyen were not permitted to remain in Australia.

   [86] Statement of Mr Geoffrey Laws dated 6 April 2017; G documents at 109

6. I accept that Mrs Nguyen faces serious health issues and has relied on her son over the years.  At the same time, Mrs Nguyen also has the support of Mr Janes although I acknowledge that he is a house sharer and not a partner.  Her third husband, whom she married in 2014, left her a few weeks after the marriage and after he first told her that he had a son.  They separated in 2016.  Mr Whinfield is a friend as well but, like Mr Janes, not a partner.

7. Mrs Nguyen has been treated for depression and has significant difficulties in coping with her mental health issues.  She consulted a Psychologist, Ms Yogita Medhi, during 2016 and 2017.  Ms Medhi wrote a report dated 5 April 2017 noting that Mrs Nguyen had reported that she feels overwhelmed with the physical sensations of anxiety and experienced difficulty with breathing.  Mrs Nguyen has experienced low moods, low motivation, loss of appetite, tiredness, forgetfulness, sleep disturbance and weight loss.  She is very concerned about her son and his future.  In Ms Medhi’s opinion, Mrs Nguyen’s psychological functioning was likely to be adversely impacted by any breakdown in her family unit.[87]  She has had time away from her work.  Both Mrs Nguyen and her son and daughter in law referred to the vertigo from which she suffers.

   [87] G documents at 112

8. I accept that Ms Pham takes her mother in law to her medical appointments and buys groceries and medications.  Ms Pham helps her to cook and clean the house.  At the same time, Ms Pham is working and using her salary to pay household expenses while Mrs Nguyen uses her salary to pay the mortgage, of which some $200,000 remains unpaid.  They have lived together in the same house since Mr Nguyen married Ms Pham in 2014.  She is an integral part of the household and an important support for Mrs Nguyen.  It is apparent from their evidence and that of Mr Janes that the household runs effectively in this way. 

9. I also accept that Ms Pham feels that her place is in Australia as does Mrs Nguyen.  Apart from trips to tend her late father’s grave, Mrs Nguyen has not spent as much time in Vietnam since she left to move to Australia.  She fears to return to it for any purpose other than tending the grave for she fears her first husband and it is a country where she suffered abuse at his hands.  She would not be returning to Vietnam were her son to do so.

C.       Impact on Australian business interests

1. Paragraph 14.3(1) of Direction No. 65 states:

   “Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”

   C.1     Consideration

2. The cancellation of Mr Nguyen’s visa and the non-revocation of that cancellation would not have any effect on Australian business interests.  He has no business interests of any sort and, although he is regarded as a hardworking and effective worker in the hospitality industry, he has not revealed any skills that could not otherwise be found among those in the Australian community.

D.       Impact on victims

1. At paragraph 14.4(1), Direction No. 65 states:

   “Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”

D.1     Consideration

1. Given the nature of his past drug offending, the victim or victims of Mr Nguyen’s are not identifiable by name but they are identifiable by reference to their being users and the community more generally when it must provide services and deal with the consequences of the harms that arise from illicit drugs.  They have been identified in the ACIC material, to which I have referred above.  A decision not to revoke the cancellation of Mr Nguyen’s visa would mean that he would be unable to commit any further offences in Australia and his contribution to the harm caused to the community, even as a very small player in the process, would be removed.       

E.        Extent of impediments if removed

1. Direction No. 65 also states in paragraph 14.5(1) that:

   “The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   a)The non-citizen’s age and health;

   b)Whether there are substantial language or cultural barriers; and

   c)Any social, medical and/or economic support available to them in that country.”

E.1      Consideration

1. Mr Nguyen has not lived in Vietnam since he spent a relatively brief period there after returning from his studies in Moscow.  He is a relatively young man who speaks Vietnamese and who grew up in that country.  Certainly, eleven years have passed since he lived there but he has visited on eleven occasions since he left.  Mr Nguyen states that he does not have friends or family in Vietnam but, at the same time, Ms Pham said that they returned to Vietnam for a traditional wedding with their family and friends in her home town.  That wedding took place in 2015 and does not sit easily with evidence given by Ms Pham that her relationship with her mother is very strained because her mother did not approve of her marrying him.  It may be that estrangement has happened since but it was not presented in that way in the evidence.  She does not have a relationship with her father any more.  Mr Nguyen spoke of a cousin with whom he has been in touch to send money to his father on one occasion.  He does not have contact with his father and only one of his maternal aunts lives in Vietnam.  His mother has not had contact with that aunt due to a family dispute over property. 

1. If Mr Nguyen were required to leave Australia and return to Vietnam, he would be accompanied by Ms Pham as her visa is dependent upon his retaining his visa.  Even if Ms Pham and he are not estranged from her family, I accept that they would not have a family base of any size to which they could turn for assistance.  As for friends, it is difficult for me to make a finding.  Mr Nguyen said that he and Ms Pham met through a mutual friend and friends attended the traditional wedding in Vietnam.  It is understandable that friendships fail as the years pass but Mr Nguyen has travelled to Vietnam with some frequency.  Even if he did not maintain his contacts with his friends, he has maintained a familiarity with the country. 

1. It cannot be doubted that it would be hard but, with Mr Nguyen’s skills in the hospitality industry and in IT as well as his fluency in the Russian language, tertiary studies in chemical engineering and proficiency in English, he would return to Vietnam with skills that would assist him to find work. 

Decision

1. While the predecessor of Direction No. 65, Direction No. 55, clearly put the future harm to the Australian community and the risk of harm’s occurring as the fulcrum around which the other considerations were to be weighed in the balance, the removal of a clear statement to that effect in Direction No. 65 leaves the fulcrum to be drawn by implication.  Despite the rewording, it seems to me that paragraph 6.3 of Direction No. 65 is to the same effect.  When account is taken of the considerations in, in this case, Part C, it is clear that the Minister intends that a decision-maker undertake a similar balancing exercise having regard to all of the considerations that he requires to be addressed and having regard to any other relevant factors. 

1. Balancing the considerations is never an easy task.  In this case, Mr Nguyen has worked in Australia and has worked more than one job at times.  He has been regarded as a hard and reliable worker.  Even when the relationship between him and his mother was distant, he tried to care for her by leaving food and money on her doorstep.  He and his wife have a caring relationship and he has plans and hopes for the future.   Each year he has not been in prison, he has volunteered at his church to work on maintenance and general duties.  If the cancellation of his visa is not revoked, Mr Nguyen will not be able to continue to make his positive contributions to the Australian community or his family through his work or his volunteer activities.

1. I am very aware that Mrs Nguyen will be left on her own in Australia if the cancellation of her son’s visa is not revoked and if, as a consequence, her daughter in law, is not permitted to remain in Australia.  It can be said that she came to Australia without her son but she did so in circumstances that were slightly different from those that now prevail.  She came to be with her second husband, John, and it was open for her son to join her.  In the current circumstances, it would not be open for her son to return to Australia although she could return to Vietnam to visit him.  Despite her reluctance to do so, and I accept that she would not return to Vietnam to live, she continues to make brief visits to that country in order to tend her father’s grave and she would have an opportunity to see her son.  More importantly, perhaps, Mrs Nguyen would not have access to Australia’s Medicare system if she were to return to Vietnam.  She would not have the benefit of the emotional, practical and financial contribution made by her daughter in law, Ms Pham for she would be in Vietnam.  Mrs Nguyen’s mental state is likely to suffer without her son and daughter in law but I do note that she will not be alone in her house as Mr Janes continues to live in it on a share basis.

1. If Ms Pham were to leave Australia, she would return to a country she left some four years ago.  Accepting that her marriage to Mr Nguyen has meant that her relationship with her mother is not as strong as it could be, she would be returning to a country where she grew up and studied.  She would return to her friends.  In the absence of any evidence whether those friends would assist in providing accommodation, I assume that they would not.  I do not have evidence of Ms Pham’s previous employment in Vietnam or of her job opportunities.

1. In light of all of these circumstances, life for Mrs Nguyen in Australia and for Mr Nguyen and Ms Pham in Vietnam will be very difficult if I do not revoke the cancellation of his visa.  On the other side of the scales, though is the risk of harm that may face members of the Australian community should Mr Nguyen re-offend and particularly if he should commit further offences relating to the cultivation of cannabis.  It might be said that people use cannabis for medicinal purposes but the activities in which Mr Nguyen engaged were unlawful.  He did not learn from his first sentence of nine months, which was quite a significant sentence for a first offence, and found himself serving a four year sentence.  He has expressed remorse but his continuing to excuse his behaviour diminishes the regard that I can pay to his expression of remorse. 

1. Given the seriousness of his most recent offending, the unacceptable risk of his re-offending and the possible harms that can result to the Australian community should Mr Nguyen re-offend, I have concluded that they outweigh the undoubted distress that will be caused to his mother and his wife by his being required to leave Australia. Therefore, I have decided to affirm the decision of a delegate of the Minister dated 21 September 2018 not to revoke the decision made on 8 February 2017 to cancel Mr Nguyen’s Class BB Subclass 155 Five year Resident Return visa under s 501(3A) of the Migration Act.

I certify that the preceding one hundred and twelve [112] paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie.

........[sgd]........................................................

Associate

Dated: 17 December 2018

Date of hearing:

7 December 2018

Counsel for the Applicant:

Solicitors for the Applicant:

Mr Mathew Kenneally

Carina Ford Lawyers

Solicitor for the Respondent:

Mr Ned Rogers
Australian Government Solicitor