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.
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
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
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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Nguyen and Minister for Immigration and Border Protection (Migration) [2018] AATA 1340
Case
[2018] AATA 1340
Decision Date
CaseChat Overview and Summary
This matter concerned an application for review of a decision to refuse a partner visa to Mr Nguyen, a citizen of Vietnam. The Administrative Appeals Tribunal was required to determine whether Mr Nguyen passed the character test under section 501(6)(a) and (c) of the Migration Act 1958 (Cth), and if not, whether the discretion to refuse the visa should be exercised. The Minister argued that Mr Nguyen did not pass the character test due to a substantial criminal record, specifically a conviction for dangerous driving causing death and failure to stop after an accident, for which he received a sentence of three years and six months imprisonment.
The Tribunal was tasked with considering the primary considerations outlined in the Direction, including the protection of the Australian community, the best interests of any minor children in Australia, and the expectations of the Australian community. It also had to consider other relevant factors, such as the impact on family members. The Tribunal was required to weigh the seriousness of Mr Nguyen's criminal conduct against the risk of reoffending and the impact on his minor child.
In its reasoning, the Tribunal acknowledged the seriousness of Mr Nguyen's offending, particularly the dangerous driving causing death conviction and his disregard for driving laws. However, it found that Mr Nguyen presented a low risk of reoffending and had demonstrated genuine remorse. The Tribunal also considered the best interests of Mr Nguyen's son, noting that while the son was in the full-time care of his mother and contact had been limited, the son was still a minor. Ultimately, the Tribunal concluded that the consideration of protection of the Australian community weighed slightly in favour of not refusing the visa, given the low risk of reoffending.
The Tribunal decided to set aside the delegate's decision and substitute it with a decision to grant the visa. This outcome was based on the Tribunal's assessment that Mr Nguyen did not pose an unacceptable risk of future harm to the Australian community and that it was in the best interests of his minor child for him to remain in Australia.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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 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. 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. 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. 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
Evidence
Evidence Before The Court
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. EVIDENCEMr Nguyen’s criminal offending The following table has been derived from records against Mr Nguyen as outlined in a National Police Certificate dated 14 July 2016: 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.
Decision
Reasons for decision
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 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; andh) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct. 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.
Ratio Decidendi
Legal Principle Established
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 CONSIDERATIONSProtection of the Australian Community 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; andb) 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 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;… 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.