Nguyen and Minister for Immigration and Border Protection (Migration)

[2018] AATA 1340

Nguyen and Minister for Immigration and Border Protection (Migration) [2018] AATA 1340 (24 May 2018)

Division:GENERAL DIVISION

File Number:           2018/1048

Re:Mr Chi Tam Nguyen

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Ms Anna Burke, Member

Date:24 May 2018

Place:Melbourne

For the reasons I have given, I affirm the decision of the delegate of the Minister for Immigration and Border Protection dated 20 January 2018 to refuse Mr Nguyen’s application for a Partner (Residence) (Class BC) Visa under s 501(1) of the Migration Act 1958.

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

Ms Anna Burke, Member

CATCHWORDS
MIGRATION – Visa refusal – applicant is a citizen of Vietnam – applicant applied for a partner visa – applicant does not pass character test in s 501(6)(a) and 7(c) – applicant not of good character on account of substantial criminal record – whether discretion to refuse visa should be exercised – applicant does not present unacceptable risk of reoffending – minor child in Australia – decision affirmed

LEGISLATION
Migration Act 1958 (Cth); ss 499, 500, 501

CASES
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411
Re Ayache and Minister for Immigration and Border Protection (Migration) [2018] AATA 310
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 440

SECONDARY MATERIALS

Minister for Immigration and Border Protection (Cth), Ministerial Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014

REASONS FOR DECISION

Ms Anna Burke, Member
24 May 2018

1. On 4 May 2017 a delegate of the Minister for Immigration and Border Protection (the Minister) issued a notice of intention to consider refusal to grant Mr Nguyen’s Partner (Residence) (Class BC) Visa (the visa) under s 501(1) of the Migration Act 1958 (Cth) (the Act). On 26 May 2017 Mr Nguyen provided a response to the intention to refuse his visa.

2. On 20 January 2018 a delegate of the Minister made a decision to refuse Mr Nguyen’s application for the visa under s 501(1) of the Act. Notice of this decision was provided to Mr Nguyen on 1 March 2018. The delegate found that Mr Nguyen did not pass the character test, as set out in s 501(1) of the Act. In particular, the delegate found Mr Nguyen’s offence of dangerous driving causing death to be very serious as it resulted in the death of another person. The delegate found that there were no sufficient countervailing considerations in Mr Nguyen’s case to warrant the Australian community accepting any level of risk and decided to exercise the discretion to refuse the visa.

3. On 5 March 2018 the Administrative Appeals Tribunal (the Tribunal) received an application from Mr Nguyen lodged under s 500(1)(b) of the Act, seeking review of the decision to refuse to grant his visa. At the time, Mr Nguyen was being held at the Fulham Correctional Centre. At the hearing of his application on 14 May 2018, Mr Nguyen was self-represented and Ms Laura Crick, solicitor from Clayton Utz, appeared for the Minister. The Tribunal and the parties were also assisted by a Vietnamese interpreter, Ms Long Ngoc To. The Minister lodged a set of paginated G-Documents and the applicant provided a number of written statements to support his oral evidence. Documents received under summons from the Victoria Police, the Melbourne and Sunshine Magistrates’ Courts were also accepted into evidence.

   BACKGROUND

4. Mr Nguyen is a 33 year-old Vietnamese national who came to Australia on 23 February 2013 at age 28, travelling on a Partner (Temporary) (Class UF) visa. His sponsor was his wife Thao Phuong Nguyen, an Australian citizen, whom he married in Vietnam on 30 October 2011.

5. Mr Nguyen was born and raised in Vietnam in a hard-working and supportive family with three siblings. He completed his education at year 12 and subsequently trained as a bodybuilder. He ultimately competed in this field and established his own gym. In 2009 Mr Nguyen travelled to Australia on a short-stay business visa. During this visit he met his future wife. In 2010 Mr Nguyen’s future wife travelled to Vietnam, accompanied by her two children from previous relationships. They commenced living together and subsequently married in Vietnam in 2011. Their son was born in Australia in November 2012. Mr Nguyen subsequently applied for and was granted a temporary partner visa arriving in Australia in February 2013.

6. Mr Nguyen lived with his wife, her two children whom, he advised the Tribunal, referred to him as dad and their son in Melbourne. He has been gainfully employed at all times since arriving in Australia, first working as a fruit picker, then as a furniture maker and eventually established his own scrap metal/recycling business. Mr Nguyen’s wife was a stay-at-home mum during this period. Mr Nguyen and his wife have subsequently separated and she has withdrawn her sponsorship of his partner visa application on 15 October 2014.

7. Mr Nguyen’s migration history is as outlined below:

   ·6 April 2009 - arrived in Australia on a Business Short Stay (Temporary) (Class UC) visa, he stated that he works for Pham Thi Thanh import and export business as a chief accountant and he was in Australia to explore business opportunities for the company.

   ·25 June 2009 - departed Australia.

   ·18 July 2009 - arrived in Australia on a Business Short Stay (Temporary) (Class UC) visa, his visa was cancelled on arrival as it was believed he may not be a genuine business visitor.

   ·20 July 2009 - departed Australia.

   ·23 February 2013 - arrived in Australia on a Partner (Temporary) (Class UF) visa.

   ·27 August 2014 - a delegate of the Minister refuses a Partner (Migrant) (Class BC) visa under s 65 of the Act.

   ·22 December 2015 – a delegate of the Minister cancelled Mr Nguyen’s subclass 010 Bridging Visa A under s 116(1)(g) of the Act, relying on the prescribed grounds of  r 2.43 (1)(oa) of the Migration Regulations 1994.

   ·

   8 June 2016 - the Migration and Refugee Division of the Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration.

   
   

   That Tribunal considered that clause 100.221(4)(c)(ii) of Schedule 2 to the Migration Regulations 1994 was satisfied because there is a child of the relationship to whom the applicant has parental responsibilities and obligations pursuant to the Family Law Act 1975.

   ISSUES

8. There are two central issues before the Tribunal in this application for review:

   (a)does Mr Nguyen pass the character test in s 501(1) of the Act?; and

   (b)if Mr Nguyen does not pass the character test, should the Tribunal exercise its discretion to refuse the visa?

   LEGISLATIVE FRAMEWORK

9. Section 501(1) of the Act gives the Minister the power to refuse to grant a visa if a visa applicant is unable to satisfy the Minister that he or she passes the character test. The term character test is defined in section 501(1) of the Act. Relevantly for this matter, s 501 provides that:

   Refusal or cancellation of visa on character grounds

   (1)  The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

   …

   Character test

   (6) For the purposes of this section, a person does not pass the character test if:

   (a) the person has a substantial criminal record (as defined by subsection (7));

   ...

   (7) For the purposes of the character test, a person has a substantial criminal record if:

   …

   (c) the person has been sentenced to a term of imprisonment of 12 months or more…

10. If an applicant is found not to pass the character test, the discretion to refuse the visa must be considered. Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. A person or body having those functions or powers, including the Tribunal, must comply with any relevant direction (s 499(2A) of the Act; see also Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J). Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction) is a direction made under s 499 of the Act and provides a guide for decision-makers performing functions or exercising powers under s 501 of the Act (para 6.1(4) of the Direction).

11. Paragraph 6.1 of the Direction outlines the objectives of the Act and the Direction, stating in part:

    (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    (2)Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.

    …

12. Paragraph 6.2 of the Direction sets out General Guidance relating to the Government’s intent:

    (1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

    …

    (3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501… The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B…

13. The principles referred to in the General Guidance and reproduced below, constitute a framework within which decision-makers apply the considerations in Part A, B, or C of the Direction (para 6.3):

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

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

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

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

14. The considerations differ among the three Parts and the reason for that difference is explained in para 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.

15. In deciding whether to exercise the discretion to refuse to grant a visa, the Tribunal should have regard to the primary and other considerations in Part B of the Direction. Paragraph 11(1) of the Direction provides that the primary considerations are:

    a)Protection of the Australian community from criminal or other serious conduct;

    b)The best interests of minor children in Australia;

    c)Expectations of the Australian Community.

16. Paragraph 12(1) provides that the other considerations that must be taken into account, where relevant, include (but are not limited to):

    a)International non-refoulement obligations;

    b)Impact on family members;

    c)Impact on victims;

    d)Impact on Australian business interests.

17. Paragraph 8(4) of the Direction states that primary considerations should generally be given more weight than the other considerations. Paragraph 8(5) states that one or more primary considerations may outweigh other primary considerations.

    EVIDENCE

    Mr Nguyen’s criminal offending

18. The following table has been derived from records against Mr Nguyen as outlined in a National Police Certificate dated 14 July 2016:

COURT	COURT DATE	OFFENCE	COURT RESULT
Sunshine Magistrates Court	21 Dec 2015	Deal Property Suspected Proceed of Crime	Convicted and fined aggregate of $2500
Sunshine Magistrates Court	21 Dec 2015	Possess Prohibited weapon without exemption/approval	Convicted and fined aggregate of $2500
Melbourne County Court	25 Aug 2015	Drive in dangerous manner causing death	Imprisoned for 40 months. Licence cancelled and disqualified for 2 years
Melbourne County Court	25 Aug 2015	Fail to stop motor vehicle after accident	Imprisoned for 4 months, 2 months of sentence concurrent **total imprisonment 3 years and 6 months**
Melbourne Magistrates Court	9 Sep 2014	Contravene a conduct condition of bail (2 Charges)	Convicted and fined an aggregate of $500
Melbourne Magistrates Court	5 Feb 2014	Unlawful Assault	Without conviction; fined $300

1. On 25 August 2015 Mr Nguyen pleaded guilty in the County Court of Victoria to the charge of dangerous driving causing death and failure to stop after an accident. He was convicted and sentenced to 3 years and 6 months imprisonment with a non-parole period of 2 years, his driver’s license was cancelled and he was disqualified from driving for 2 years. Her Honour Judge Cohen describes the circumstances of the accident, indicating the seriousness of Mr Nguyen’s offence and his blameworthiness in her sentencing remarks. Her Honour stated:

   5   After finishing work about 6pm on 3 August 2013, you drove your employer and friend, Mr Dong Ngo, and another fellow worker, Mr Toan Nguyen, to a restaurant where the three of you ate dinner. Mr Ngo had brought a bottle of vodka, which the three of you shared, and then he gave you money to go buy a second bottle, which you did. The three of you drank the vodka straight, that is not mixed with soft drink and shared each bottle approximately equally, so you had drunk approximately two thirds of 750 ml bottle of vodka over dinner. That was over a period of approximately three hours. You then set out to drive the other two men. Mr Ngo in the front passenger seat and Mr Nguyen in the back seat behind you.

   6   At approximately 9:15 PM you drove north along Hampshire Road, Sunshine and at the T intersection with Ballarat Road, turned right. At that point, Ballarat Road a major thoroughfare was a two-way road with three lanes for traffic in each direction separated by grass medium strip. The speed limit on that section was 70 km/h.

   7   As you turned into Ballarat Road, you lost control of your car as you were travelling too fast for the turn and oversteered the car, causing it to slide. According to a collision reconstruction expert from the major collision unit, you would have been driving at least 44.6 km/h at that stage. After sliding on that turn, you then overcorrected your steering, causing the car to slide again, and this time you drove over the gutter of the left-hand side onto the nature strip. It is probable that the tyres on your car were damaged at that stage. Photos show the tyre marks left by your car as it mounted onto the nature strip, passed a tree then drove across driveway of what was an ambulance station. Your car then veered right, hit a traffic sign, and re-joined Ballarat Road.

   8   You continued to drive east along Ballarat Road for approximately 79 m when you oversteered to the left and then to the right accelerating from what has been estimated by the expert to be at least 56 to 62 km/h. By that stage you would have had at least one flat tyre, and apparently realised that you were having difficulty controlling the car. Your car then travelled to the right crossing each eastbound lane of Ballarat Road, and then across the median strip and entered the carriageway for traffic travelling westbound, that is, in the opposite direction.

   9   As you crossed onto the westbound lanes of Ballarat Road, your car collided with the front of another vehicle, a Honda Civic, being driven by Ms Phuong Pham, causing a moderate amount of damage to the front of both your and hers.

   10   Your car then spun around and you drove off, heading west along Ballarat Road. You continued driving to position parallel to where a Red Rooster store was on the left and the ambulance station to the right, which was a distance of somewhere between 100 and 200 metres along the road. Your car then spun around clockwise, approximately 180°, so that it was then facing east, that is, the wrong way, on the westbound carriageway. You then drove it into the car park of the Red Rooster store which abutted the westbound carriageway.

   11   Before you drove into the car park, the front passenger side door opened and Mr Ngo exited the car. It is unclear from witness statements whether he opened the door and exited or something occurring inside the car caused the door to open and him to fall out. It is also unclear due to differences in witness statements whether he exited while the car was spinning or when it had paused briefly before accelerating to go into the car park. Mr Ngo fell onto the road backwards and hit his head with a loud crack. He was observed to not be moving. Whilst he was lying on the road, another car ran over him, that car travelling west along Ballarat Road. The car did not stop, and neither the car nor the driver has been identified.

   12   Witness statements differ as to Mr Ngo’s exact position on the road when the other car ran him over and as to which parts of his body were struck by that car, but witnesses state that his body was raised off the ground and shifted position when he was run over, from which I referred there was substantial forceful contract.

   13   Ambulance officers who had seen the incident came immediately and tried to assist Mr Ngo as he was lying on the road, but it became apparent that he was deceased.

   14   Your driving leading to that point is the basis of Charge 1. The fact that you did not stop when Mr Ngo left your vehicle, and drove into the car park, is the basis of Charge 2, of failing to stop immediately when you ought reasonably to have known that Mr Ngo had been killed.

1. The respondent at the hearing asked Mr Nguyen to recall what happened in August 2013. He described the accident on the following terms:

   The deceased, myself and another man were working together that day. The deceased man was my close friend, 2 to 3 months he was very much busy with his job so we had no time to hang out. On the day of the accident we had a job to install a kitchen cupboard; we agreed that as we finished the job early we would go out to eat together. The deceased informed us that he was going to buy a shop or factory so the other friend and I congratulated him. The deceased was very happy as well, so he said okay let’s get a few more drinks. We ate a lot, we talked a lot and we drank a lot, we drank an equal amount as each time we drank we filled up each other’s cup.

   Probably because we are happy for each other we did not count how much we drank. We finished and went home. When we are in the car, we went past 2 to 3 streets then the accident happened; we knew nothing because we were affected by alcohol

   Because of that incident, I never forget about that. The pain is still there.

   I was on Hampshire Road and turned right too fast so the car rolled a few times. I got control of the car, at the time of control the car I probably did not know my friend got out of the car. I saw a body on the street, I did not know it was my friend. I felt the car may have already hit one person but I never thought it was my friend. I never knew my friend dropped out of the car I was driving. I thought what have I done I killed someone, felt the world collapsed by the time the police came.

2. The respondent asked Mr Nguyen if he had tried to drive away after the accident, he responded no.

3. The respondent next explored Mr Nguyen’s numerous driving offences which, significantly, occurred whilst he was out on bail from the incident which resulted in his friend’s death.

4. Mr Nguyen advised the Tribunal that he had only had his full Australian driver licence for a couple of months when the accident occurred but he had been driving in Vietnam for over 10 years before arriving in Australia. Mr Nguyen told the Tribunal that he understood his licence had been suspended for 2 years and he was currently attending a course in the hope of having his licence reissued. He did acknowledge that he had been driving whilst his licence was suspended. He said a couple of times he had driven without a licence were all emergencies involved with running his business. He indicated that he stopped driving once he had received an additional infringement notice.

5. The respondent then took Mr Nguyen to the incident that results in the conviction of unlawful assault in February 2014. Mr Nguyen told the Tribunal that he had had an altercation with his neighbour and had been verbal but not physical. The argument had been over his neighbour riding a motorcycle in their street, which was very noisy. This usually occurred late at night and early in the morning. It was causing difficulty with his family, particularly his seven-month-old son as he was unable to sleep because of the noise. He had gone to the neighbours to ask him to keep it quiet; he explained he had only recently arrived from Vietnam and had dealt with things as he would at home. Mr Nguyen described the neighbour as a very big man and if they had had a fight he would have been the loser. There was shouting and pushing but there was no fight and the neighbour’s wife called the police.

6. In respect of the contravention of bail, Mr Nguyen explained that he had failed to report to the police station twice between being charged with the incident involving the death of his friend and before the eventual court date.

7. The respondent next explored the incident which took place in February 2015 for which he was subsequently charged with dealing with stolen goods and possessing a weapon without approval. Mr Nguyen told the Tribunal he was relocating from his home to the factory on this day and had all his possessions in his van when the police pulled him over. Mr Nguyen contended the goods the police found in the van for which he was subsequently charged and fined $2500 were his. However, he did not have any receipts to prove this. Mr Nguyen said he liked and used all the jewellery every day. Mr Nguyen said the other items were gifts including what the police described as a weapon. He said the item looked like a phone. He’d asked his friend if he could have it because he liked it he; it was a gift from a friend.

8. The respondent next explored Mr Nguyen’s behaviour whilst in prison, in particular an early incident involving Mr Nguyen when he first arrived in prison. He said:

   that was one week after I came to prison. I had left an appointment with my lawyer to talk about an appeal. He told me I need a lot of money to pay for appeal, really want to appeal but I didn’t have any money. I was very frustrated. On the way back to my room I saw another inmate he was looking at me with not so friendly eyes; we argued, no fighting but we just verbally argued with each other.

9. Mr Nguyen was adamant that nothing else has happened since his time in prison. He stated he has been seeking to improve himself by undertaking any available training opportunities and working out at the gym. He was outraged at the suggestion he had ever taken drugs and is striving to make himself a better person.

10. Mr Nguyen, as a self-represented applicant with limited command of the English language, presented as a respectful, candid individual who was not trying to diminish his actions on the night his friend was killed. He appeared to be cognisant of the harm he had caused to others and had a genuine desire to learn from his actions and develop into a better person. His time in prison has given him pause for thought and he knows he needs to strive to be a better person so he will never again be separated from his family. Mr Nguyen’s character and remorse were also commented on by her Honour Judge Cohen:

    27. I take your plea of guilty to be an acceptance of your responsibility by you and to be consistent with what I am told is the remorse you have expressed, together with deep regret at the death of a man who was both your employer and someone you regarded as a friend and confidante.

    CHARACTER TEST

11. The Minister argued that Mr Nguyen was not of good character within the meaning of ss 501(6)(a) and 501(7)(c) of the Act as he has a substantial criminal record of 12 months or more. The Tribunal finds that Mr Nguyen is not of good character as he has a substantial criminal record, having been sentenced to a total period of 3 years and 6 months imprisonment. Mr Nguyen therefore does not pass the character test under s 501(6)(a).

    THE DISCRETION

12. As Mr Nguyen does not pass the character test, the Tribunal must consider whether it should exercise its discretion to refuse the visa under s 501(1) of the Act. In doing so, it must have regard to the relevant primary and other considerations within Part B of the Direction which are applicable. All three of the primary considerations are relevant in this matter, Protection of the Australian community, Best interests of minor children in Australia and Expectations of the Australian Community. One of the other considerations, Impact on family members did arise on the evidence and whilst the other considerations
    (International non-refoulement obligations, Impact on victims and Impact on Australian business interests, as defined within the Direction) did not arise on the evidence they will be explored by the Tribunal.

    PRIMARY CONSIDERATIONS

    Protection of the Australian Community

13. Paragraph 11.1 of the Direction provides that:

    (1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:

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

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

    Nature and seriousness of the conduct

14. Paragraph 11.1.1 of the Direction relevantly states that:

    (1) In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:

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

    b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled)… are serious;

    …

    d) The principle that any conduct that forms the basis for a finding that the non-citizen does not pass a subjective limb of the character test is or is not of good character under s 501(6)(c), is considered to be serious;

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

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

    g) The cumulative effect of repeated offending;…

15. The respondent argued that Mr Nguyen’s criminal conduct in Australia to date was repeated and very serious. According to the respondent, the nature and seriousness of Mr Nguyen’s offending was demonstrated by:

    ·being convicted of a very serious offence of driving in a dangerous manner causing death, for which the courts imposed a sentence of 40 months imprisonment. The length of this sentence and the fact that the courts considered incarceration the only option, was indicative of the seriousness of this offence as imprisonment is the last resort in the sentencing hierarchy;

    ·blatant disregard for Australian law by driving on three occasions whilst his licence was suspended;

    ·breaching his bail conditions; and

    ·previously providing false or misleading information to the Department of Immigration and Border Protection when his visa was cancelled in 2009.

16. In her sentencing remarks, Judge Cohen stated:

    23. Notwithstanding that another car ran over the body of Mr Ngo on the road after he left your car, the prosecution case was that the dangerous manner in which you drove your car was a substantial and operative cause of the death of Mr Ngo. Your plea of guilty to charge 1 means that you admit that connection, as well as admitting that your driving was a serious breach of the proper management of control of your vehicle which posed a real danger to other members of the public that they would be killed or seriously injured as well is to your passengers.

    …

    54. … I turn now to assess what we call your moral culpability – that is, the objective aspects that shows your blameworthiness in committing the offence.

    55. … First, you had consumed a large quantity of intoxicating liquor prior to driving…

    56. Next I take into account that this incident was not a momentary lapse in attention or judgement, but is a relatively protracted event in that you lost control of the vehicle when you first turned into Ballarat Road, but persevered in trying to keep driving…

    57. Next the fact that you’re driving on a major thoroughfare meant that even though it was after 9 PM there were likely to be considerable number of other vehicles and members of the public put at risk…

    58. There is evidence that both of your passengers felt scared as this incident unfolded…

    59. Both of your passengers knew how much you had drunk before driving and were apparently willing to get into your car and let you drive them. That is not a factor in mitigation – that is, it does not lessen your claim. However in these circumstances it removes what would have been aggravating circumstances to your capability had the victims been entirely unconnected with a significant cause of you offending.

17. In the personal circumstances form filed as part of his response to the Notice of Intention to Consider Visa Refusal dated 26 May 2017, Mr Nguyen explains the factors of his offence which he believes should be taken into account by the decision-maker on whether to refuse his visa or not. He states:

    Not a day I have not regretted what happened to cause my extreme circumstances. I have lost my dearest friend and I have to live with that “punishment” for the rest of my life. I am not a criminal, but an ordinary person happen to break the law. I understand and fully take accountability of my act and I am genuinely sorry for that. Not in a million years I would have done this, even to think about doing this. I came to this wonderful country with hope and I am petrified it is going to be crushed. I am begging for your mercy and ask to provide an opportunity for me to prove myself. I may not have any documents or character reference letters, that’s because I have never planned to commit any sort of offence in my life. My behaviour in prison should reflect the type of person I am and will continue to be once released. I am a quick learner and I have learnt a very very valuable lesson. Please give me and my children an opportunity. Thank you so much. I have also been a good taxpayer.

18. Mr Nguyen advised the Tribunal that he was sorry for what had happened but it had already happened and he could not change that but he would like another chance to show that he has changed. Mr Nguyen stated he has changed by attending various courses in prison so upon release would be a good person. He would have his own business and will be a good father to his kids. He also said he was ashamed of his actions and being imprisoned because no members of his family had ever been in trouble with the law. The Vietnamese community of which he was part did not hold him responsible for the death of his friend as they understood he had not done it on purpose.

19. Mr Nguyen stated he had sent an apology to his friend’s widow via another friend and if allowed to stay in Australia he would make every effort to find his friend’s widow and apologise to her in person. He still had the same feelings when the incident happened; he felt terrible and that he was such a bad person. He stated he wanted to change himself into a good person and was very sorry about what happened. He hoped he now got to show that he was a changed person and would never reoffend again. He had learnt a lot in prison; if he got to stay in Australia he will contribute to the community and be a very good father to his son.

20. The Tribunal considered Mr Nguyen’s actions on the night of 3 August 2013 to be very serious. Whilst not violent or sexual in nature or committed against a vulnerable member of the community, his actions had put at risk both the passengers in his car, himself and the wider community. The Tribunal accepts that Mr Nguyen had not intentionally caused the death of his friend and that in some part his friend was also complicit in his own death.  All had consumed a large quantity of alcohol and got in the car with a driver who was substantially over the limit. The deceased had exited the car and been hit by another vehicle whilst Mr Nguyen and the other passenger both survived. The Tribunal noted the driver of the car who had essentially hit Mr Nguyen’s friend and run away has never been found.

21. The Tribunal considered the sentence imposed by the court indicated the serious nature of Mr Nguyen’s offending. The Tribunal was troubled by his repeat offending after the incident and before his incarceration, particularly driving while his licence was suspended. The Tribunal was also not convinced by Mr Nguyen’s explanation in respect of the convictions for dealing with suspected proceeds of crime and possession of a prohibited weapon.

22. The impact of Mr Nguyen’s actions in such a short time after his arrival in Australia was also of concern to the Tribunal.

23. The Tribunal found this consideration weighed heavily in favour of refusing Mr Nguyen’s visa.

    Risk to the Australian community

24. Paragraph 11.1.2 of the Direction provides that:

    (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 likelihood that it may be repeated may be unacceptable.

    (2) In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

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

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

    b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    i. information and evidence from independent and authoritative sources on the likelihood of the non-citizen reoffending; and

    ii. evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and

    iii. the duration of the intended stay in Australia.

    (4) Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.

25. The respondent argued that given the serious nature of the applicant’s offending, the risk of serious physical injury to individuals or the wider Australian community should Mr Nguyen reoffend is very high.

26. The respondent contended that the following factors demonstrate there is a moderate to high likelihood of Mr Nguyen reoffending:

    ·the fact he committed three driving offences after his license had been suspended following the death of his former employer and friend

    ·there was limited evidence of rehabilitation to date.

27. The respondent contended that based on these factors there is a moderate to high risk that Mr Nguyen would reoffend if allowed to continue to reside in Australia. His criminal offending to date had repeatedly put members of the Australian community at risk of harm and had caused the death of one person.

28. In her sentencing remarks Honour Judge Cohen stated:

    …

    34. I accept that since coming to Australia you have worked hard and tried to establish yourself productively as part of the community here. Although you had a limited perception of the effect of your consumption of alcohol, you apparently did not engage in any other antisocial substance abuse and had no background disorders which would have limited your ability to establish your life well in the Australian community. Those aspects of your background support your prospects of re-establishing yourself in the future.

    35. You had no prior criminal history. Significantly you had no prior driving offences of any nature, although the weight of that is more limited in your case as you had only lived in Australia for about two years and only held a Victorian license for about a month.

    36. Of some concern to the prospect of your rehabilitation, and to whether you have truly understood and accepted responsibility for the present offences, is that you have apparently been charged with subsequent driving offences, one involving drink-driving. However as there has been no determination of guilt yet on those charges, I shall not take them into account.

    37. Unfortunately on the personal side, your marriage was becoming strained by the time of the events that bring you here, and I am told the marriage broke down almost straight after these events as your wife wished to leave you. She was pregnant at the time, and your baby son was born in November 2013. I have been told and accept that it has been very distressing to you that you have not had close contact with your young son, as he was born after you separated from his mother. There has subsequently been dispute about you seeing him, and since the date your trial was set to start when you apparently missed attending a Family Court hearing, you had no further contact visits with your son.

    38. Your immigration status, and specifically the likelihood of deportation as a consequence of your sentence, has been brought to my attention as a significant factor in mitigation …

    39. You came to Australia on a spousal visa in 2011, and at the time of these events had not yet applied for permanent residency …

    …

    41. I take into account that the expectation of deportation has two significant aspects for you. First, it destroys the hope you had to establish a new life and becoming a productive member of the Australian community. Secondly it means that you are likely to be separated in the long term from your son, who is still an infant and his mother seems unlikely to make efforts for you to be able to see him, even while you are in prison, and presumably after you have left this country. Further I take into account that you are unlikely to be granted a further entry visa, at least for a considerable time to come. I accept this is a very serious consequence for you, and the prospect of the separation from seeing your son greatly distresses you …

    …

    57. Next, the fact that you were driving on a major thoroughfare meant that even though it was after 9 PM, there were likely to be considerable number of other vehicles and members of the public put at risk … bears out that a considerable number of people were likely to have been put at risk for your driving that night.

    …

    63. I accept that you were not engaging in deliberately risky driving, and not exceeding the speed limit in that area. I except, of course that you had no intention to cause harm to Mr Ngo as is typical for cases of this particular charge. I have also taken into account that you did not have a history of dangerous driving offences or any other previous incidents or warnings about the risk of driving as you did.

    64. Nevertheless, I consider that this incident is at least at the high end of the medium-range of moral culpability and bordering on the lower end of the high range.

1. In the personal circumstances form filed as part of his response to the Notice of Intention to Consider Visa Refusal dated 26 May 2017, Mr Nguyen explores the likelihood that he may reoffend and states:

   I have learnt a very hard lesson. Being away from loved ones is the most painful lesson I could ever have learnt. I will never make or even think about anything close to losing my loved once again. I will never forgive myself.

2. Although Mr Nguyen’s offending was serious, the Tribunal is of the view that his risk of reoffending is low and that he has shown genuine remorse for his actions. The Tribunal found that Mr Nguyen does not represent an unacceptable risk of future harm to the Australian community or other individuals. The protection of the Australian community consideration weighs slightly in favour of not refusing Mr Nguyen’s visa application, taking into account the serious nature of Mr Nguyen’s offending, coupled with the low risk of reoffending.

   Best interest of minor children in Australia affected by the decision

3. Paragraph 11.2 of the Direction relevantly provides that:

   (1) Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.

   (2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.

   …

   (4) In considering the best interests of the child, the following factors must be considered where relevant:

   a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

   b) The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;

   c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;

   d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to main contact in other ways;

   e) Whether there are other persons who already fulfil a parental role in relation to the child;

   f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

   g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

   h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

4. The respondent accepted that it may be in the best interests of Mr Nguyen’s son for him to remain in Australia. However the respondent contended that the Tribunal should place minimal consideration on this factor as there was limited evidence that Mr Nguyen has responsibility for the care of this child. The respondent argued this was demonstrated by the Family Court orders which are in place in respect of Mr Nguyen’s son, providing only limited access to supervised visits. His son is in the full-time care of his mother and he has not seen or had contact with his son for approximately three years.

5. In the personal circumstances form filed as part of his response to the Notice of Intention to Consider Visa Refusal dated 26 May 2017, Mr Nguyen explains the impact a refusal of his visa would have on his son and stepchildren aged 9 and 15. Mr Nguyen stated:

   We had a very happy and joyful life. We are a family. I tried to be in contact with them since got incarcerated but I wasn’t able to reach them as my wife has changed her phone number. I know we adults should play a major role to our kids, and it isn’t fair to punish them for our (adults) differences. I have been a good role model to the children and I wish to be so when I am released. I know they’re waiting for my arrival back.

   …

   Nothing is more horrific than not knowing the whereabouts and the well-being of your own children. I have done all I could within my very limited resources within prison to reach my kids. I know my children would be devastated already and now if I get deported that will bring more pain and misery to my children, especially Dragon. He’s just a growing child whom needs his father as much as any other child would. I cannot possibly imagine these two years that he would have suffered without me as we were very close. He is my ever first own flesh and blood.

6. Mr Nguyen advised the Tribunal that his son was very cute, that he should have the chance to have a relationship with his son and although his wife was there to care for the child it did not take away from his role and responsibility as a father. Mr Nguyen was adamant that he should be given the chance to be part of his child’s life and if he was refused a visa to remain in Australia he would lose all contact with his biological child. Mr Nguyen also described a close relationship with his stepchildren whom he also wished to continue a meaningful relationship with and this again would not be possible if he was removed from Australia.

7. The Tribunal accepts it is in the best interests of Mr Nguyen’s child for his visa not to be refused. Whilst Mr Nguyen has had limited contact with his son since his imprisonment, this has not undermined or deterred his resolve to be a good father to his son. Mr Nguyen stated at the hearing that he had sought to maintain contact with his son but this had been blocked by his wife, and that he had been attempting to get legal aid to assist him with finding and maintaining contact with his child. Mr Nguyen stated if allowed back into the Australian community he would make every endeavour to ensure he was again part of his son’s life. The Tribunal accepts that should Mr Nguyen be removed from Australia he would lose any hope of meaningful contact with his son, therefore this consideration weighs in favour of not refusing Mr Nguyen’s visa application.

   EXPECTATIONS OF THE AUSTRALIAN COMMUNITY  

8. Paragraph 11.3 of the Direction states:

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

9. The respondent argued that the Australian community would not expect Mr Nguyen to be granted a visa to remain in Australia and this consideration weighed heavily in favour of refusing the visa. The respondent’s submission stated:

   In light of the seriousness of the offences committed by the applicant, including violent offences, his disregard for court orders and driver license suspension, the respondent contends that the applicant does not meet the Australian community’s expectation that he will obey the laws of the country given his past conduct. At the time of his offence the applicant had only lived in Australia for two years and held a Victorian license for about a month. Accordingly he had spent little time in the community before committing this serious offence. Further, the fact that the applicant committed three driving offences, including drink-driving after his dangerous driving had caused his employer’s death indicates he has little regard for road safety laws which go to protecting the essential safety of the community.

10. Mr Nguyen advised the Tribunal that since his incarceration he had tried to use the system to better himself educationally and to date had completed a large number of programs. He tendered certificates as documentary proof of this claim. He believed this would assist him with employment opportunities and demonstrate to the Australian community that he seeks to make amends for his actions.

11. The respondent strongly contended that the Australian community would expect Mr Nguyen not to be given the right to remain in Australia. The respondent highlighted that the community rightly expects non-citizens to obey the laws of Australia and respect their institutions. It was submitted that Mr Nguyen’s history of serious, repeated offending was fundamentally incompatible with the values and expectations of the Australian community. The respondent highlighted Mr Nguyen’s persistent disregard for, and failure to abide by, the laws of Australia in breaching his visa requirements, driving whilst suspended and failing to abide by his bail conditions. This, the respondent stated, showed he had a lack of respect for our legal institutions.

12. As Mr Nguyen was unrepresented, the Tribunal observed that right thinking members of the community, apprised of the facts of this case, may not expect refusal of Mr Nguyen’s visa. That is particularly so given the tragic event which led to his friend’s death was indeed an accident and not a deliberate action. However this had to be balanced by the fact Mr Nguyen got behind the wheel of his car when he was twice above the legal limit and pleaded guilty in the court to a charge of dangerous driving causing death. In this regard, reliance is placed on the view expressed by Block DP in regard to the term expectations of the Australian community (as it appeared in an earlier Ministerial Direction) in Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 at [7]:

    It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into the Australian community, knowledge of the evidence before me. …

13. In a more recent decision of Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999, DP Forgie noted that determining the expectations of the Australian community is ultimately a matter for judgment, the facts of which that judgment is made must be made on the basis of facts established by the evidence (at [72]). In assessing the expectations of the Australian community, regard should also be had to the principles in para 6.3 of the Direction as they reflect community values and standards (para 6.2(1)).

14. Again as the applicant was unrepresented, the Tribunal turned to ReAyache and Minister for Immigration and Border Protection (Migration) [2018] AATA 310 to explore the proposition that the Tribunal should have regard to the expectations referred to in the direction espoused by the government rather than any objective expectation put forward by an applicant. Deputy President Forgie, in the decision, states:

    70. In view of these principles, it seems to me that I should be guided by the words of paragraph 11.3 in the immediate context of Direction No. 65 and in the broader context of s 501(1). When that is done, there can be no inevitable outcome. That said, how are the expectations of the Australian community to be evaluated? This was addressed by the Tribunal in Re Visa Cancellation Applicant and Minister for Immigration and Citizenship:

    “ Relevant community values will not depend on transient or fashionable thinking. They will not be found in the publications of vocal minorities or the fulminations of the media, motivated by short term considerations and the improvement of circulation or ratings. They will not necessarily reflect the views of individual politicians. Community standards will be found in more permanent values. They will be informed in part by legislation of the parliaments, and especially legislation applicable to the decision-making. Formal statements by ministers will be relevant, but not when they are not speaking officially or when their remarks are not carefully considered or do not appear to reflect ‘a broad consensus of opinion’ (Mason, Courts and Public Opinion at 36). Decisions will also be informed by the decision-maker’s belief based on experience. Evidence will rarely be of any practical assistance.

    It will often be impossible for decision-makers to articulate the basis for their determination of what community standards require in a particular case, because the conclusion will not be based on evidence. Nevertheless, decision-makers are members of the community and exposed to the processes of its instrumentalities. They may not always be able to empathise with particular individuals or groups, because of lack of exposure to local considerations, but they are exposed to the short term and long term thinking and dissemination of ideas which determine the way society changes and develops.

    Drawing on these considerations, even without detailed analysis of them, in reasons for decision, will lead to better formed judgments which more truly reflect community standards. An assessment expressed to be guided by community standards or values, without more, will still be likely to lead to better decision-making than if no attempt at such an assessment is made. Expressing an opinion that current community standards require a particular outcome will be likely to represent a better decision than one couched in personal terms. Such an approach will sometimes lend itself to reasons. Where there are no reasons, however, the decision and the basis for it will still be better expressed than with reasons couched in personal belief.”

    71. Although I respectfully suggest that it is implicit in the passage, I think that it should be expressly stated that the task described by the Tribunal is carried out in the context of, in this case, making a decision under s 501(1) of the Migration Act. Therefore, s 501(1) becomes the starting point for identifying those of the Australian community’s expectations that will be relevant. It is the starting point because a decision-maker is under an obligation first to determine the limits of a discretionary power by reference to the subject-matter, scope and purpose of the legislation granting the power to make that discretionary decision. In other words:

    “... the law obliges the Minister, in the particular case, to reach a decision on the merits of that case by reference only to considerations that are relevant to the grant of power and compatibly with the exercise of that power with respect to an individual. ...”

    72. The purpose of the Migration Act is to regulate those who may come to and those who may remain in Australia and the circumstances in which they may do so. There are various types of visa, some of which permit a person to remain on a temporary basis and others which permit a person to remain permanently. Parliament has decided that those who have committed offences attracting certain penalties may be refused a visa or have a visa cancelled and, in some instances, must be refused a visa or have a visa cancelled. Against that background, the Minister has developed considerations in the Direction that are consistent with the Migration Act’s subject-matter, scope and purpose.

    73. Consistently with the Migration Act, the heart of the Direction is the protection of the Australian community and its institutions. That is reflected in the considerations set out by the Minister for decision-makers exercising one of the three types of discretion dealt with more fully in Parts A, B and C. It is also reflected in paragraph 6 of the Direction when it sets out the Objectives, General Guidance and Principles all of which underpin the exercise of the particular discretions that are the subject of Parts A, B and C. It is to this paragraph that regard is to be had in determining the matters that underpin and inform paragraph 11.3 when it addresses the expectations of the Australian community in the context of considering whether to exercise the power to refuse a visa. In particular, it underpins and informs when it may be appropriate to revoke the mandatory visa cancellation or when the Australian community would expect that the person should not hold a visa.

15. Consistent with the Direction, there is an expectation in the Australian community that non-citizens will respect Australia’s laws. In this regard the Tribunal notes the framework principles within the Direction highlight the Australian community’s low tolerance for visa applicants who engage in criminal conduct – particularly those who have been participating in, and contributing to, the Australian community for only a short period of time. In Mr Nguyen’s case, he was in Australia for approximately 12 months before he committed the offence for which he subsequently pleaded guilty.

16. Accordingly, the Tribunal finds that the expectations of the Australian community weigh in favour of refusing of Mr Nguyen’s visa application.

    OTHER CONSIDERATIONS

    International non-refoulement obligations

17. Paragraph 12.1 of the Direction provides:

    (1)  A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person 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.

18. The respondent argued this consideration was not enlivened by the evidence before the Tribunal.

19. Mr Nguyen advised the Tribunal he did not believe he would suffer persecution if he was returned to Vietnam but the fact that he would be away from his son would be like torture. He did not believe he could return to live with his parents in Vietnam as they were elderly and not in good health. His parents had had high hopes for him and his future in Australia and his current circumstances were causing them much distress.

20. The Tribunal finds that there are no non-refoulement obligations that need to be observed in this situation. Neither the applicant nor the respondent sought to pursue this argument because international non-refoulement obligations arise in a situation where a person may be removed to a country and face the prospect of being subjected to cruel or unusual punishments and this would not be the case for Vietnam.

    Impact on family members

21. Paragraph 12.2 of the Direction provides that the Tribunal must have regard to the:

    (1)  Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;

22. Mr Nguyen’s relationship has broken down with his former wife (who, as an Australian citizen, has the right to remain in Australia indefinitely) as indicated by her withdrawal from her sponsorship of his partner visa application. The respondent contended there was no evidence she would suffer any hardship as a result of Mr Nguyen’s visa refusal.

23. Mr Nguyen advised the Tribunal that his brother and sister-in-law resided in Queensland and that he was in contact with his sister-in-law whilst in prison. His sister-in-law had indicated that he was welcome to live with them in Queensland upon his release from prison but he had no intention of leaving Melbourne if his visa was granted as he wished to be near his son.

1. Having regard to all of the evidence, the Tribunal finds that this consideration has no bearing upon consideration of refusal of Mr Nguyen’s application for a visa under s 501(1) of the Act.

   Impact on victims

2. Paragraph 12.3 of the Direction provides that the Tribunal must have regard to the:

   (1)   Impact of a decision to grant a visa on members of the Australian community,   including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and can be disclosed to the non-citizen being considered for visa refusal;

3. The respondent argued this consideration was not enlivened by the evidence before the Tribunal.

4. In her sentencing remarks, Judge Cohen stated:

   24. A victim impact statement of Ms Kim Thii, Mr Ngo’s wife was tendered, written for herself and for their three young children. She did not wish it read out in court so I shall not quote from its contents in detail or specifically. It is enough to say that I have read a moving account of a young widow who has lost her husband, who she described as her mate, her friend, the financial provider for the family and the father of her children. Not only does she feel her own loss very deeply, but she feels the weight of responsibility as a sole parent now and for the future. The children have suffered emotionally from the loss of their beloved father, still miss him deeply and question why their family cannot do things they see other children’s families do. It is to be hoped that some financial relief can be obtained for this family. They cannot, however restore the man himself to them, and even though the passage of time may help them to get on with their lives, his wife and children will always carry their sense of loss.

5. Mr Nguyen advised the Tribunal that he had sent an apology to his friend’s widow about the accident and would seek to make amends if he was allowed to remain in Australia. He had not kept in contact with friends whilst incarcerated. However he believed the Vietnamese community had not shunned him as they did not believe what had happened was deliberate.

6. There is no evidence one way or the other that identifies what effect, if any, the refusal of Mr Nguyen’s visa would have on the victims; however one would imagine Mr Ngo’s widow and children may be aggrieved if Mr Nguyen’s visa was not refused. It is more likely than not there would be no impact in a practical sense on the victims. The Tribunal therefore finds that this consideration has no bearing upon consideration of refusal of Mr Nguyen’s application for a visa under s 501(1) of the Act.

   Impact on Australian business interests

7. Paragraph 12.4 of Direction provides that the Tribunal must have regard to the:

   (1)   Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.

8. The respondent argued this consideration was not enlivened by the evidence before the Tribunal.

9. Mr Nguyen advised the Tribunal that prior to his incarceration he had been running his own business in the metal recycling sector, employing six people. He further noted he had never previously been in any difficulty with the law here or in Vietnam until the accident. Mr Nguyen advised he had paid his taxes, had always worked since arriving in Australia and would seek to re-establish the business on release, which sadly did not continue after his incarceration.

10. In light of the evidence the Tribunal finds there will be no impact upon business interests in Australia should Mr Nguyen’s visa be refused.

    CONCLUSION

11. Fundamentally the Tribunal was cognisant at all times of the principles set out in para 6.3(5) and concurred that:

    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.

12. Mr Nguyen has not demonstrated a commitment to Australia and its values, laws and institutions having committed a serious offence within 12 months of his arrival in this country on a partner visa. The Australian community would not look favourably on Mr Nguyen’s behavior given the breach of trust he has exhibited when he came to Australia to get a better future for himself and his child.

    DECISION

13. For the reasons I have given, I affirm the decision of the delegate of the Minister dated
    20 January 2018 to refuse Mr Nguyen’s application for a Partner (Residence) (Class BC) Visa under s 501(1) of the Migration Act 1958.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member

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

Associate

Dated: 24 May 2018

Dates of hearing:	14 May 2018
Advocate for the Applicant:	Self- Represented
Advocate for the Respondent:	Ms Laura Crick
Solicitors for the Respondent:	Clayton Utz