Nguyen and Minister for Immigration and Border Protection (Migration)

Nguyen and Minister for Immigration and Border Protection (Migration) [2017] AATA 2276 (17 November 2017)
Division:GENERAL DIVISION
File Number: 2017/2537
Re:Thi Huong Nguyen
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:17 November 2017
Place:Melbourne

The decision under review is affirmed.
......[sgd]..................................................................
Senior Member A. Nikolic AM CSC
MIGRATION – visa refusal – application for partner visa – substantial criminal record – immigration misconduct – failure to pass character test – whether risk of Applicant engaging in criminal conduct in Australia – protection of the Australian community from criminal or other serious conduct - the best interests of minor children in Australia – expectations of the Australian community – other considerations for visa applicants – decision affirmed
Legislation
Migration Act 1958 (Cth); ss 195A, 197C, 198, 234, 499(2A), 500(6L), 501(1), 501(6)(d)(i), 501K
Sentencing Act 1989 (NSW)
Electricity Supply Act 1995(NSW)
Cases
Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 Godley v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 83 ALD 411
Re Li and Minister for Immigration and Citizenship [2008] AATA 147
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 440
Secondary Materials
AAT Guideline for Persons Giving Expert and Opinion Evidence dated 30 June 2015
Department of Immigration and Border Protection, Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA dated 22 December 2014
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
17 November 2017
REASONS FOR DECISION

Mrs Thi Huong Nguyen (the Applicant) seeks review of a decision by a delegate of the Minister of Immigration and Border Protection (the Respondent), to refuse to grant her partner, Mr Nam Duong Nguyen, a Partner Visa under section 501(1) of the Migration Act 1958 (the Act).[1] The delegate found that Mr Nguyen did not pass the character test by virtue of sections 501(6)(a) and 501(7)(c) of the Act, as a consequence of his criminal conviction and sentence of imprisonment.[2]
[1] G-Documents, hereafter referred to as Exhibit R1, pp.1-6.
[2] Exhibit R1, pp.7-10, Notice of Visa Refusal Under Section 501(1) of the Migration Act 1958.
The hearing was conducted on 27 September 2017 and 12 October 2017. The Applicant was represented by Mr Gregory Hughan of counsel, instructed by Hannah Dickinson, a solicitor from Carina Ford Immigration Lawyers. The Respondent was represented by Mr Adam Cunynghame, a solicitor from Sparke Helmore Lawyers.
For the reasons that follow, I have decided to affirm the decision under review.
BACKGROUND
Mr Nam Duong Nguyen is 36 years of age and was born in the Socialist Republic of Vietnam. The following background is relevant to this matter:
(a)10 January 2009: The Applicant married Mr Nguyen in Vietnam, having first met him in 2006 while they were both studying at university;[3]
[3] Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 28 August 2017, paragraph 5. See also Exhibit R1, p.49, Application for Migration to Australia by a Partner, Question 57.
(b)24 August 2009: The couple travelled to Australia on a Student (subclass 573) Visa, on which Mr Nguyen was his wife’s dependent secondary applicant.[4] Mrs Nguyen’s intent at that time was to undertake post-graduate studies in accounting, then return to Vietnam to manage her family’s company;[5]
[4] Applicant’s SFIC, paragraph 6.
[5] Exhibit R1, p.112.
(c)late July 2010: Mr Nguyen left the marital home following an argument and moved into a property in Leumeah, NSW at the invitation of a man named Duong (John);[6]
[6] Applicant’s SFIC, paragraph 8.
(d)4 August 2010: NSW Police executed a search warrant on the Leumeah property, arresting Mr Nguyen and charging him with knowingly taking part in the cultivation of a commercial quantity of a prohibited plant, and using electricity without authority. He was remanded in custody on that date. On learning of Mr Nguyen’s offending, the Applicant contends she ceased contact with him;[7]
[7] Applicant’s SFIC, paragraphs 9-10.
(e)13 July 2011: Mr Nguyen was convicted in the Campbelltown Local Court, of using electricity without authority;[8]
[8] Exhibit R1, p.25, National Police Certificate dated 8 October 2015. See Electricity Supply Act 1995 (NSW).
(f)18 July 2011: Mr Nguyen’s Student Visa was cancelled under section 140 of the Act, following the cancellation of his wife’s visa due to her non-compliance with visa conditions;
(g)29 September 2011: Mr Nguyen was found guilty of Knowingly Take Part Cultivate Commercial Quantity Prohibited Plant[9] and received a custodial sentence of 18 months imprisonment, with a non-parole period of 13 months and 26 days.[10] Having already served the non-parole period of that sentence while on remand, Mr Nguyen was released on the day of his court appearance;
[9] Ibid.
[10] Case Number 2010/00259286 R v Duong Nguyen, Campbelltown District Court of NSW, dated 29 September 2011.
(h)30 September 2011: Mr Nguyen was granted a one day Bridging E (Class WE) Visa, requiring him to report to the NSW Compliance Section of the Department of Immigration and Citizenship.[11] He failed to report and became an unlawful non-citizen by virtue of the operation of section 14 of the Act;[12]
[11] Exhibit R1, p.82, paragraph 3.
[12] Ibid.
(i)December 2011: Mr Nguyen began a relationship with Ms Thi Ut Quy Nguyen, who had two children from a previous relationship;[13]
[13] Exhibit R1, p.49 (Question 62); p.66 (Question 33); and Applicant’s SFIC, paragraph 18.
(j)June 2012: The Applicant and Mr Nguyen divorced;
(k)13 January 2013: The Applicant gave birth to a child (Louis), resulting from a relationship with Mr Thanh Cong Nguyen;[14]
[14] Exhibit R1, p.48 (Question 53); p.50 (Question 64); and Applicant’s SFIC, paragraph 17.
(l)21 August 2013: Mr Nguyen applied for a Protection (subclass 866) Visa, contending that he feared crime groups in Vietnam;[15]
[15] Exhibit R1, p.82, paragraph 4.
(m)12 September 2013: Almost two years after becoming an unlawful non-citizen, Mr Nguyen presented himself to the Department of Immigration and Citizenship’s Compliance Section in Melbourne and was taken into immigration detention;
(n)9 October 2013: Helen Nguyen, the daughter of Mr Nguyen and Ms Thi Ut Quy Nguyen was born while Mr Nguyen was in immigration detention;[16]
[16] Exhibit R1, p.45 (Question 31);
(o)17 December 2013: Mr Nguyen’s application for a Bridging Visa was refused on the basis of his criminal record;[17]
[17] Exhibit R1, pp.78-80.
(p)27 December 2013: Mr Nguyen’s application for a Protection Visa was refused;
(q)16 April 2014: Ms Thi Ut Quy ended her relationship with Mr Nguyen;[18]
(r)14 July - February 2015: Mr Nguyen appealed the refusal of his Protection Visa, but subsequently withdrew his application and departed Australia for Vietnam on 22 August 2014. The Applicant subsequently visited him in Vietnam and they resumed their relationship;
(s)27 February 2015: Mr Nguyen and the Applicant re-married in Vietnam;
(t)4 May 2015: Mr Nguyen applied for a Partner (combined subclass 309 and 100) Visa sponsored by the Applicant;
(u)13 May 2015: Mr Nguyen applied for a Visitor (subclass 600) Visa in order to be present for the birth of the child he and the Applicant were expecting in June 2015. This application was refused on the basis that Mr Nguyen did not satisfy the requirement that he was a genuine temporary entrant;
(v)7 June 2015: David Nguyen, the son of Mr Nguyen and the Applicant was born in Australia;[19]
(w)30 November 2016: Mr Nguyen was issued a Notice of Intention to Consider Refusal[20] of his Partner Visa application under section 501(1) of the Act.
(x)21 December 2016 and 24 March 2017: Mr Nguyen responded to the Notice via his representatives;
(y)3 April 2017: After considering Mr Nguyen’s response, a delegate of the Minister refused his visa application; and
(z)1 May 2017: The Applicant, as sponsor of Mr Nguyen’s Partner Visa application, asked the Tribunal to review the delegate’s decision.
[18] Exhibit R1, p.49 (Question 62); p.66 (Question 33).
[19] Applicant’s SFIC, paragraph 32.
[20] Exhibit R1, pp.7-10.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act provides for the Minister or their delegate to refuse to grant a visa on the grounds that the applicant is unable to satisfy the Minister that they are able to pass the character test. The Tribunal’s jurisdiction to review such decisions is provided for at section 500(1)(b) of the Act.
The term character test is defined at section 501(6) of the Act. A person does not pass the character test if any one of the eleven sets of circumstances detailed in that section applies to them. A delegate to the Minister has refused Mr Nguyen’s visa application under section 501(6)(a) of the Act, in that he has a substantial criminal record, which is defined under section 501(7)(c) of the Act as being sentenced to a term of imprisonment of 12 months or more.
Should the decision under review in these proceedings be affirmed, the effect of section 501F(2) of the Act is that this application and any other pending visa applications for Mr Nguyen (except a Protection Visa or other visa specified in the regulations), will be refused by operation of law.
DIRECTION No. 65
If a visa applicant does not pass the character test, this enlivens a discretion under section 501(1) of the Act to refuse to grant the visa. Guidance in exercising the discretion is found in Ministerial Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction). Section 499(2A) of the Act mandates that the Tribunal must comply with the Direction (see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J).
Paragraph 6.1 of the Direction sets out the following objectives:
6.1 Objectives
(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.
…
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
By way of general guidance, paragraph 6.2 of the Direction provides:
6.2 General Guidance
(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.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(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 principles referred to in the General Guidance are reproduced below and constitute a framework within which decision-makers must apply the considerations in Parts A, B, or C of the Direction:
6.3 Principles
(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.
Paragraph 7.1(a) of the Direction states that a decision-maker …must take into account the considerations 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. Paragraph 8(1) of the Direction explains that the considerations in Part A and Part C for existing visa holders and in Part B for visa applicants are different:
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.
If it is determined that Mr Nguyen does not pass the character test, the following primary considerations in paragraph 11(1) of the Direction must be applied to the specific circumstances of his case:
(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.
Paragraph 12(1) of the Direction requires that other considerations to 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.
Paragraph 8(4) of the Direction states that …Primary considerations should generally be given greater weight than the other considerations. Paragraph 8(5) states that …One or more primary considerations may outweigh other primary considerations.
ISSUES
The issues to be resolved in this case are:
(a)whether Mr Nguyen passes the character test set out in section 501(6) of the Act; and
(b)if not, whether the discretion in section 501(1) of the Act to refuse his visa application should be exercised, after applying the considerations at Part B of the Direction to the specific circumstances of his case.
CONTENTIONS
Applicant’s Contentions
In her application to the Tribunal Mrs Nguyen contends that the delegate’s decision failed to adequately consider the factors set out in Ministerial Direction 65. Her solicitor submits that the Tribunal should exercise the discretion under section 501(1) of the Act favourably to Mr Nguyen because:
(a)his offending, while serious, is one of the less serious instances of offences that come before the Tribunal;[21]
[21] Applicant’s SFIC, paragraph 60.
(b)his offending is neither violent nor sexual in nature, was not committed against a vulnerable member of the community, does not relate to immigration detention, occurred over seven years ago, and is one-off offending in an otherwise unblemished history;[22]
(c)his offending related to taking part in the cultivation of a commercial quantity of cannabis plant or leaf, which attracts a maximum sentence of 15 years imprisonment and a fine. That indicates the legislature’s view that cannabis-related offending is less serious[23] than offending related to the cultivation of a commercial quantity of other substances, for which the maximum penalty is 20 years imprisonment and a fine. In that regard, Mr Nguyen’s sentence of 18 months imprisonment, with a non-parole period of 13 months and 26 days was very modest, particularly having regard to the possible maximum sentence available for the offence;[24]
(d)sentencing remarks relating to Mr Nguyen’s conviction show his role was merely to occupy the house in which the crop [was] being grown, putting his involvement at the bottom of the range of seriousness for an offence of its nature;[25]
(e)he is remorseful, has demonstrated his rehabilitation over many years,[26] and does not present an unacceptable risk of future harm to the community;
(f)the nature of harm that would occur if Mr Nguyen were to reoffend by crop-sitting cannabis plants is minimal;[27]
(g)Given his offending is not “very serious” and there is a negligible chance of reoffending,[28] a proper consideration of the protection of the community does not support his Partner Visa application being refused on character grounds;
(h)as the biological father of two Australian children [and as] the father of a third Australian child,[29] the best interests of Mr Nguyen’s children must be paramount in this case and consistent with the United Nations Convention on the Rights of the Child;[30]
(i)the specific circumstances of this case are not such [that] the community would consider refusal of his partner visa cancellation to be appropriate…a reasonable informed member of the community would expect and demand that Mr Nguyen be given a chance to remain in Australia;[31]
(j)the Applicant needs her husband’s support and her psychological and physical health will suffer if her husband cannot re-join her in Australia;[32] and
(k)the business experience and new skills in civil electricity[33] obtained by Mr Nguyen in Vietnam could be put to use in Australia for the benefit of his family and the community.[34]
[22] Ibid.
[23] Ibid, paragraph 61.
[24] Applicant’s SFIC, paragraph 61.
[25] Ibid, paragraph 62.
[26] Ibid, paragraph 116.
[27] Ibid, paragraph 73.
[28] Ibid, paragraph 76.
[29] Ibid, paragraph 77.
[30] Ibid, paragraphs 85-87.
[31] Ibid, paragraphs 89; 94.
[32] Applicant’s SFIC, paragraph 99.
[33] Exhibit A5. A certificate from the Hanoi General Intermediate School dated 14 March 2017 records that Mr Nguyen completed a six-month Civil Electricity course from October 2016 – March 2017.
[34] Applicant’s SFIC, paragraphs 97; 112.
Respondent’s Contentions

The Respondent submits that Mr Nguyen does not pass the character test, thereby enlivening the discretion in section 501(1) of the Act, which should be exercised to refuse to grant the visa. Key contentions of the Respondent are:
(a)Mr Nguyen was convicted of serious offences and the commercial quantity of marijuana involved has serious and widespread consequences for society;[35]
(b)Mr Nguyen has not lived in the Australian community for most of his life, nor from a very young age, and has only spent a limited amount of time in the Australian community.[36]
(c)Mr Nguyen has been dishonest with the Department of Immigration by not regularising his lawful status in Australia and remaining unlawful in the Australian community for two years;[37]
(d)Mr Nguyen constitutes a risk of reoffending and the nature of harm from the cultivation of commercial quantities of illicit drugs arises for individual users, victims of crimes committed by users, and increased costs to the community in terms of law enforcement, the justice system and the public health system;[38]
(e)Mr Nguyen displays multiple past “Strong” and “Moderate” factors in relation to recidivism, based on the evidence of the applicant’s psychologist, Doctor Matthew Barth, and other factors of relevance which may impact his adjustment to the Australian community;[39]
(f)Mr Nguyen is not the biological father of his stepchild in Australia (Louis), whom he states will be adversely affected if the Visa is not granted. The Respondent further submits that the nature and duration of Mr Nguyen’s relationship with Louis is limited, is characterised by long periods of absence or limited meaningful contact, and that Louis can continue to be cared for by his mother;
(g)Mr Nguyen has a biological child with the Applicant in Vietnam (David) who is cared for by Mr Nguyen and his family;
(h)Mr Nguyen has received visits in Vietnam from the Applicant, whose evidence shows she has family support in Australia;
(i)Mr Nguyen has committed offences and exhibits character concerns such that the Australian community would expect that he should not be granted a visa; and
(j)Although visa refusal will impact on Mr Nguyen’s wife in Australia, this factor is not sufficiently compelling so as to outweigh the considerations weighing against the granting of the visa.[40]
[35] Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated 11 September 2017, paragraph 30.
[36] Exhibit R1, p.74, Mr Nguyen’s Movement Details to and from Australia.
[37] Respondent’s SFIC, paragraph 31.
[38] Ibid, paragraph 33.
[39] Ibid, paragraph 34.
[40] Respondent’s SFIC, paragraph 44.
Mr Nguyen’s Convictions
Judge Neilson of the District Court of NSW sentenced Mr Nguyen after accepting his plea of guilty to a charge of Knowingly Take Part Cultivate Commercial Quantity Prohibited Plant.[41] His Honour imposed a custodial sentence of 18 months imprisonment, with a non-parole period of 13 months and 26 days.[42] In his sentencing remarks, Judge Neilson stated the offence Mr Nguyen committed is a serious one.[43] He noted that the house in question was a sophisticated hydroponic setup, with the entire upper storey…converted into five separate cannabis-growing rooms. His Honour stated that when arrested with a co-offender, Mr Nguyen:
…was found to be in the possession of, amongst other things, two mobile phones and a pair of gardening gloves…Police found 285 cannabis plants…Police estimate that if the plants had been allowed to grow to full maturity and a harvest made, the crop was worth approximately $1,400,000.
[41] Case Number 2010/00259286 R v Duong Nguyen, Campbelltown District Court of NSW, dated 29 September 2011.
[42]Ibid.
[43] Exhibit R1, pp.31-41.
Notwithstanding his finding that the offence was a serious one, His Honour noted that it was at …the bottom of the range of seriousness for an offence of this nature. He also elaborated on Mr Nguyen’s role and culpability as follows:
…there was no suggestion here that the offender himself established the hydroponic setup…There is no evidence that the offender himself caused the bypassing of the electricity meter. There is no evidence that the offender actually cultivated the crop. The offender’s role is merely to occupy the house at which the crop is being grown, to keep an eye on it, to be its guardian and to mask its presence by being an occupier of the premises, so that people are aware that somebody is living there and will not be concerned, there was no one at home, with people coming and going each morning and night.
Evidence of Mr Nguyen
Mr Nguyen’s statement dated 28 August 2017 was taken into evidence.[44] He gave oral evidence from Vietnam with the assistance of a Vietnamese interpreter and was cross-examined.
[44] Exhibit A2.
Mr Nguyen currently works as Deputy Director of Hoang Ha Trading and Production Company Ltd., a stationary company owned by his wife’s family.[45] He was appointed to that role within a few months of returning to Vietnam in 2014. Both his parents and his wife’s parents reside in Vietnam. He lives in his wife’s parents’ residence with his son David, his two-year old child with Mrs Nguyen. David is cared for by his mother-in-law whenever he works.
[45] Applicant’s SFIC, paragraph 37. See also Exhibit A5, Decision to Appoint Deputy Director by Hoang Ha Production and Trading Company Limited, dated 1 October 2014.
Mr Nguyen says he was 28 years old when he first arrived in Australia. Within a year of arrival he was confronted with the consequences of his criminal conviction. He says he accepts full responsibility for his offending and for overstaying his visa, but contends that having served his time in prison, it is not right to be permanently separated from his wife and children. Mr Nguyen elaborated on the circumstances of his criminal conviction, including how he and his wife had experienced a lot of problems in the lead up to her kicking him out of the house, mainly due to financial problems. He stated that he met the drug contact called John, who was from his home town in Vietnam. Despite feeling scared, he agreed to John’s offer to stay at the house where the drugs were being grown, because he had nowhere to go. He agreed to John’s request to supervise the construction of a retaining wall at the residence, because John knew he had experience as a handyman. Mr Nguyen agrees that he understood his actions to be unlawful, but didn’t think clearly or that it was a serious matter because he was only involved for a short period of time. He expressed remorse for his offending, realising how serious it was when he was incarcerated and the serious…harmful effect on the community arising from the illicit drug trade. Mr Nguyen characterises his offending as a one-off mistake, and promises to never again harm the Australian community by re-offending. He stated that his wrongdoing has had such a serious impact on the community…because cannabis…can cause serious problems to users and society, leading to other crimes. He contends that as the father of three children, he is now more mature and not as reckless as before.
In relation to his failure to report to immigration authorities after being released from prison, Mr Nguyen said he wasn’t thinking clearly. He agrees that he subsequently remained an unlawful non-citizen for approximately two years, knowing that was a breach of Australia’s immigration laws. Mr Nguyen explains that after being released from prison he felt shame about his conduct and the consequences arising from it, and had also learned his wife was in a relationship with another man. He did not want to return to Vietnam under these circumstances, particularly after forming a relationship with a woman he met after being released from prison.[46] He contends, however, that he eventually did the right thing by surrendering himself, knowing he faced deportation. In surrendering himself, Mr Nguyen said he wanted a chance to live decently and not in hiding, and was hopeful of the mercy of the Department because of his family circumstances.
[46] Exhibit R1, p.103, paragraph 4.
Mr Nguyen states that he has a third child, Helen, who is an Australian citizen and lives in Australia with her mother, Ms Thi Ut Quy Nguyen, who Mr Nguyen was in a relationship with from 2011 - 2013. He states that he has lost contact with Helen, causing him ongoing sadness and a deep sense of loss.[47] If allowed to return to Australia, he intends to locate Helen to see if she is living happily with her mother and step-father. Mr Nguyen expressed concerns about the relationship between his daughter and her step-father, stating Helen is my daughter, so no-one can deprive me of my rights as a father or Helen of her rights to acknowledge her biological father.
[47] Exhibit R1, p.165.
Mr Nguyen submits that he feels distressed and overwhelmed by the situation confronting him and his wife, who has visited him in Vietnam on a number of occasions, most recently in February 2017. He talks to his wife and step-son in Australia almost every day on the phone, and feels helpless at not being able to fulfil his role as husband and father. Mr Nguyen said he had recently finished an electrician’s course and was attending night classes in English. He said his English had improved and submits he will be quickly adapted to the Australian environment. He claims to have some contacts in Australia who would employ him, but provided no specific details. If not permitted to return to Australia, Mr Nguyen said he would continue to re-apply because it was important for the future of his children that they have the rights and privileges of being Australians. He emphasised the education and healthcare systems in Australia were superior to those available in Vietnam and wanted the best for his children’s future.
Witness Evidence
Mr Nguyen’s wife and sister-in-law attended the hearing, gave evidence and were cross-examined:
(a)Evidence of Applicant (Mrs Thi Huong Nguyen):
(i)Mrs Thi Huong Nguyen gave evidence at the hearing in support of her husband, assisted by a Vietnamese interpreter. Her Statutory Declaration dated 28 August 2017 was taken into evidence.[48]
[48] Exhibit A1.
(ii)Mrs Nguyen has been in Australia since 2009, originally intending to undertake a Master of Accounting degree and then return to Vietnam to manage her family’s company.[49] She did not undertake that study and it is no longer her intention to return to Vietnam. She is now a permanent Australian resident and has applied for Australian citizenship. She does not wish to live in Vietnam because Australia is now her home. She considers her future and that of her children, who are Australian citizens, is best realised in Australia with Mr Nguyen.
[49] Exhibit R1, p.112.
(iii)Mrs Nguyen cares for her son Louis in Australia, having separated from Louis’s biological father in 2013. Neither she nor Louis has had any contact with Louis’ father since then. Mrs Nguyen states she is unemployed, undertakes home duties and receives approximately $1300 per fortnight in Centrelink and Parenting Payment. She previously applied to the Child Support Agency for Louis’s biological father to pay child support, but could not recall the details of this application or of having received any subsequent correspondence.
(iv)Mrs Nguyen lives with Louis in a shared rental house with her sister Hien and a friend, Rebecca. Rebecca is a student who works part time. Mrs Nguyen receives financial support from her sister Hien, who owns a small business. That includes Hien contributing the major part of the rent. In her statement, Mrs Nguyen submitted that her husband works for her parents’ business in Vietnam and sends her approximately $8000-$10,000 each year in financial assistance.
(v)Mrs Nguyen contends she is unable to look after both Louis and David on her own in Australia, so her youngest son David lives with his father in Vietnam, while Louis lives with her in Australia. She said that while her sister and Rebecca did a little bit to help look after Louis, it was not much. She described the relationship between Louis and her sister as a good, loving relationship, and that Hien had recently accompanied Louis to Vietnam for a month to visit Mr Nguyen, while she remained in Australia to prepare for this hearing.
(vi)Mrs Nguyen highlights the difficulties facing her in Australia without her husband, submitting that she feels desperate, overwhelmed and heartbroken about the continuing separation of her family. She misses her husband and has travelled to see him in Vietnam on 5-6 occasions since he returned there in 2014. Her most recent visit was in early 2017. She claims to have problems sleeping and worries that their lives will be extremely difficult if…separated permanently. Mrs Nguyen said that she used to visit a psychologist for depression and found these sessions helpful, but no longer had the time or money to do so.
(vii)Mrs Nguyen worries about being able to guide her children through life alone and without the assistance of her husband, and about being able to send Louis to primary school and pay the fees. She misses her youngest child, David, who lives in Vietnam with her husband. She submits that her eldest child, Louis, misses his step-father and without his presence, there is no one to take him to play football or to explain matters that only a father can. Mrs Nguyen says Louis was much more outgoing and confident in Vietnam in his step-father’s presence, but became very quiet and shy on return to Australia. She considers it important for Louis to stay in Australia and practice his English ahead of commencing school in 2018 and that he is settled in Australia and wants to be in Australia. She aspires for David to also return to Australia when he is of school age and for the family to reunite. If her husband’s visa application is refused, she states that they will keep re-applying, but for the time being David will remain with her husband in Vietnam.
(viii)Mrs Nguyen describes her husband as very loving and kind to both boys, even though Louis is not his biological son. She submits that when they are in Vietnam, Mr Nguyen treats both boys exactly the same…takes Louis out, looks after him and makes sure he is happy. She and Louis talk to her husband every day over the phone, including by video call for 30 minutes to an hour and the children are involved. She contends it is a great relief to talk to her husband and David. Mrs Nguyen contends that she has seen differences in her husband since his convictions, because he was much younger and less mature at the time of his offending in 2010, but he had made a lot of effort to improve himself, is more diligent and hard-working, and is learning English and doing a trade course as an electrician.
(b)Evidence of Ms Hien Nguyen:
(i)Ms Hien, the Applicant’s sister, gave evidence at the hearing in support of her brother-in-law, assisted by a Vietnamese interpreter. Her Statutory Declaration dated 25 September 2017 was taken into evidence.
(ii)Ms Hien submits that she owns a nail and beauty business and lives in a rented house with her sister, her nephew Louis, and a friend (Rebecca). She submits that her sister does not work because of the requirement of caring for Louis, and that she herself is unable to play a greater role in Louis’s care because she works seven days a week in her small business.
(iii)Ms Hien recently took Louis back to Vietnam for a month-long visit and said Mr Nguyen’s relationship with Louis was very good. She submits that her sister is not happy with the current situation, with no husband beside her to care for her and no father figure for Louis. She expresses concern about her sister’s mood and ability to cope without her husband.
Expert Medical Evidence
Psychologist Dr Mathew Barth attended the hearing, gave evidence and was cross-examined. His report dated 21 March 2017 and a Letter of Instruction initiating his report were accepted into evidence.[50] I have considered Dr Barth’s report, which was written following a clinical assessment of Mr Nguyen during a Skype interview on 9 March 2017, assisted by a Vietnamese interpreter. Dr Barth utilised a risk assessment framework developed by Canadian researchers Andrews and Bonta,[51] which enables consideration of eight factors most predictive of criminal behaviour and the risk of recidivism. These are broken up into four strong factors that are most predictive of criminal behaviour, and four moderate factors relating to situational influences that are not as directly predictive of criminal behaviour.
[50] Exhibit R1, pp.169-177; The Letter of Instruction dated 1 March 2017 was accepted as Exhibit A4.
[51] Andrew, D.A., & Bonta, J. (2006), The psychology of Criminal Conduct (4^th ed.). Newark, NJ: LexisNexis.
Dr Barth described Mr Nguyen as expressing shame about his criminal convictions during their consultation and ruminating on the effect his actions have had on his family. He said Mr Nguyen had not tried to justify his offending during their consultation, but exhibited simplistic reasoning about why he chose to become an unlawful citizen in Australia for approximately two years. Dr Barth said this was essentially about not wanting to face up to the consequences. He said Mr Nguyen was conscious of the implications of not abiding by Australia’s immigration laws.
Dr Barth described Mr Nguyen as not an overly-intelligent person, who was easily-led and naïve. In response to questions about whether Mr Nguyen’s naivety and simplistic reasoning increased his risk of recidivism, Dr Barth responded Yes, stating that Mr Nguyen needs intervention in relation to the situational factors previously underlying his offending behaviour. Dr Barth said he would be concerned if Mr Nguyen returned and hadn’t addressed those factors. Dr Barth felt there was a solid basis for optimism, but that he would want to see [Mr Nguyen’s] level of support increased if he was to return to Australia, particularly a stronger social support network, to further moderate the risk of adverse situational factors re-emerging. He considered Mr Nguyen was a simple man with poor decision-making and problem-solving skills when under stress, which would need to be addressed. Dr Barth opined that Mr Nguyen’s practical problem-solving skills and insight are not where [he’d] like them to be. When asked to clarify Mr Nguyen’s risk of recidivism, Dr Barth said it was somewhere between low and moderate…but not at the high end of the spectrum.
Consideration – Does Mr Nguyen Fail the Character Test?
Lander J (Carr and Sundberg JJ concurring) of the Full Court of the Federal Court of Australia explained the nexus between the character test and Parliament’s intent in Akpata:[52]
The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.
[52] Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 at [105].
The Direction provides for a number of factors to be considered in this regard, such as Whether the person has been involved in activities indicating contempt or disregard for the law… [including but not limited to a]… history of serious breaches of immigration law...[53]
[53] The Direction, Annex A, Section 2, Clause 5.2(2)(a)(ii).

The Direction provides further guidance based on Wong at [33]:[54]
As a matter of construction it seems to us that conduct can now be both general and criminal at the same time so that the Minister may take into account both conduct which is criminal conduct and conduct which is general conduct…The concepts of criminal conduct and general conduct referred to cannot, now, be considered to be mutually exclusive.
[54] The Direction, Annex A, Section 2, Clause 5(2), referring to Wong v Minister for Immigration and Multicultural Affairs [2002] FCAFC 440 (Wong).
The Direction further explains the need to obtain a complete picture of a person’s character based on Godley, which requires consideration of a person’s enduring moral qualities:[55]
The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day-to-day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle.
[55] The Direction, Annex A, Section 2, Clause 5(3)-(4), referring to Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 (Godley), per: Lee J at [51].
In order to fail the character test, the Direction states it is not necessary for a person to … have a recent criminal conviction, or have been involved in recent general conduct which would not indicate that they are not of ‘good character’. However, the conduct in question must be sufficient to indicate a lack of enduring moral quality that outweighs any consideration of more recent good behaviour.[56]
[56] The Direction, Annex A, Section 2, Clause 5(4).
The specific circumstances of Mr Nguyen’s case show that he was arrested and charged with a serious criminal offence within a year of arriving in Australia. He received a custodial sentence exceeding 12 months imprisonment. On being released from prison, Mr Nguyen immediately breached the conditions of his one-day Bridging Visa and remained an unlawful non-citizen for almost two years from 1 October 2011, until presenting himself to Departmental officials on 12 September 2013. This can only be regarded as a serious breach of his visa conditions and Australia’s immigration laws. Mr Nguyen was subsequently taken into immigration detention where he remained, until departing Australia for Vietnam on 22 August 2014.[57] I find that Mr Nguyen fails the character test. Having made that finding, I must make a supervening determination regarding the discretion granted by section 501(1) of the Act, which requires application of the considerations in Part B of the Direction, to the specific circumstances of his case.
[57] The Direction, Annex A, Section 2, Clause 5.2(2)(a)(ii).
Protection of the Australian community from criminal or other serious conduct
Paragraph 11.1(1) of the Direction states:
(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.
The nature and seriousness of the conduct
Paragraph 11.1.1(1) of the Direction sets out factors to be considered in determining the nature and seriousness of a non-citizen’s offending or other serious conduct.
Mr Nguyen’s offending has not been violent or sexual in nature. There is also no evidence to suggest he has committed offences while in immigration detention, or that there has been a cumulative effect of repeat offending, or an escalation in the seriousness of his offending. That finding is balanced, however, by the fact that Mr Nguyen’s first offence was considered to be so serious in nature that the sentencing judge imposed a sentence of 18 months imprisonment for a first offender.[58] Mr Nguyen’s decision to remain an unlawful non-citizen for almost two years also reflects a serious breach of Australia’s immigration law.[59] The specific circumstances of Mr Nguyen’s case show that during his almost five year stay in Australia, he spent approximately four years either in prison, as an unlawful non-citizen, or in immigration detention.
[58] In accordance with the sentencing provisions of the Sentencing Act 1989 (NSW), accessed 12 October 2017.
[59] The Direction, Annex A, Section 2, paragraph 5.2(2)(a)(ii).
In relation to the seriousness of Mr Nguyen’s offending, I note the reference in the sentencing remarks to it being at …the bottom of the range of seriousness for an offence of this nature. I also note the extent of Mr Nguyen’s role and culpability. I accept the submissions of Mr Nguyen’s counsel that cannabis is not the worst of drugs, and that there is a level of social acceptance relating to its use. I note in this regard the Australian Criminal Intelligence Commission’s (ACIC) 2017 report, describing cannabis as the most commonly used illicit drug in Australia.[60] But the circumstances of this case do not relate to public perceptions about cannabis and its relative position in an illicit drugs hierarchy, but to the consequences of Mr Nguyen’s knowing involvement in the cultivation of a significant commercial quantity of cannabis. Through that involvement, Mr Nguyen was helping contribute to the supply of illicit drugs in Australia, which imposes costs in relation to law enforcement and potentially contributes to other criminal activity. It is to his credit that since his imprisonment, Mr Nguyen acknowledges the seriousness of his offending and that cannabis causes addiction…serious problems to users and society, and can lead to other crime. But I do not accept the submission that this is one-off offending in an otherwise unblemished history. In addition to his criminal convictions, Mr Nguyen acknowledges his serious immigration misconduct immediately after being released from prison, exacerbated by his choice to remain an unlawful non-citizen for the following two years. Taken together, I find the nature and seriousness of Mr Nguyen’s criminal conduct and his immigration misconduct to weigh strongly in favour of refusing his visa application.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[60] Australian Criminal Intelligence Commission, (2017), Organised Crime in Australia 2017, available at: accessed on 27 September 2017.
Paragraph 11.1.2 of the Direction 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 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 re-offending; 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.
In accordance with the Direction, I must consider information and evidence from independent and authoritative sources on the likelihood of Mr Nguyen re-offending. I have no doubt that Mr Nguyen’s expressions of remorse are genuine and he is saddened by the impact of his conduct on those closest to him. It is clear from his evidence that imprisonment and immigration detention have provided lessons, on which he aspires to build a better and more productive life into the future.
Counsel for the Applicant submits that the level of harm to the Australian community, were Mr Nguyen to re-offend, is moderate rather than high, and contends that additional support is available to Mr Nguyen in Australia from his wife, her sister and house-mate Rebecca. While I accept that Mr Nguyen’s wife and sister-in-law are likely to be supportive of him in Australia, there is no evidence before me on the extent to which that might apply to Rebecca, who did not provide a statement or give evidence.
In light of the available evidence, I am unconvinced that the situational factors of concern highlighted by Dr Barth would be substantially different if Mr Nguyen is permitted to return to Australia. Dr Barth states that Mr Nguyen’s risk of recidivism would increase in the presence of key situational factors present during his earlier offending. These encompass an inability to speak English, to find reliable employment, the absence of close family support, limited social networks, and significant financial pressures. Mr Nguyen’s mother-in-law similarly attributes the difficulties experienced by her son-in-law to many difficulties in a foreign land…without support from our family.[61] These factors contributed to what Dr Barth describes as Mr Nguyen’s previously conflicted relationship with Huong, resulting in him leaving the family home, and becoming involved in the growing of a commercial quantity of cannabis. The evidence shows that were he allowed to permanently return to Australia, Mr Nguyen would continue to have limited English. Most of his close family support would remain in Vietnam, and there is no evidence of specific work opportunities available to him in Australia. Moreover, it is unknown how transferrable the skills he has gained through a six-month ‘Civil Electricity’ course in Vietnam are in Australian workplaces. That said, it is to Mr Nguyen’s credit that he continues to enhance his work skills and knowledge.
[61] Exhibit R1, p.110.
From a financial perspective, the Applicant and Louis are currently reliant on Centrelink benefits, financial support from her sister, and AUD$8,000 - $10,000 in annual contributions from Mr Nguyen from his work in Vietnam. If Mr Nguyen was no longer working in Vietnam, his capacity to contribute financially to his family is untested at best. Moreover, Dr Barth assesses that further education, training, vocational, and psychological support is required to address situational factors of concern, and to enhance Mr Nguyen’s prospects in Australian society.[62]
[62] Exhibit R1, p.176, paragraph 40.
Paragraph 11.1.2(3) of the Direction requires that I have regard to any evidence of rehabilitation. I note that in his sentencing remarks, Judge Neilsen stated, that the maker of the probation report was concerned that the offender did not show much insight into his criminal behaviour and may have minimised his part in the offence.[63] His Honour accepted, however, that Mr Nguyen was genuinely remorseful and realises that what he has done is wrong.[64] Mr Nguyen’s solicitor submits that Mr Nguyen has been rehabilitated by virtue of his conduct having been tested in the community over years. He has not reoffended…By all accounts, his conduct has been exemplary. But since Mr Nguyen departed Australia in August 2014, his conduct, after imprisonment and then two years as an unlawful non-citizen, has not been tested in the Australian community. There is also no independent, objective evidence on which to base judgements about his conduct during the last three years in Vietnam. I acknowledge there is no onus of proof requiring Mr Nguyen to provide such evidence, nor do I infer that there has been any unsatisfactory conduct. I simply observe that I am unable to make any reliable conclusions or findings about his conduct since leaving Australia. I accept there is no evidence that Mr Nguyen has attempted to repeat his offences or his immigration misconduct.
[63] Exhibit R1, p.39.
[64] Ibid.
Under paragraph 11.1.2(3)(b)(iii) of the Direction I must consider the duration of Mr Nguyen’s intended stay in Australia. I note that he intends on remaining permanently if allowed to return, which I have taken into consideration in assessing the risk he poses to the Australian people.
The Direction highlights the Australian community’s low tolerance of criminal or other serious conduct by visa applicants or those on a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to or remain in Australia. But the Direction also implicitly acknowledges that the Australian community’s expectations include the acceptance of some risk in relation to the conduct of non-citizens, depending on its seriousness. The Australian community also expects that people will be given a chance to redeem themselves and realign their behaviour with expected social norms. That is evident from provisions in Australia’s criminal justice system and the rehabilitative opportunities it provides. In Mr Nguyen’s case, he was afforded an opportunity to redeem himself after being released from prison. But he chose to immediately breach the conditions of his Bridging Visa and remained an unlawful non-citizen for the following two years. In that sense, Mr Nguyen did not seize the opportunity available to him after release from prison, but conducted himself in a way that demonstrates disrespect for Australia’s immigration law.
If Mr Nguyen was again to engage in the sort of behaviour for which his character has been called into question, the potential consequences from a law and order, public health and social perspective are serious. I accept that he is remorseful for his conduct and have considered the circumstances in which he contends his offending and immigration misconduct occurred. But I find on the basis of Dr Barth’s evidence in particular, that the risk of him repeating this conduct is not insignificant and is unacceptable.
Mindful of the framework principles and after considering the nature and seriousness of Mr Nguyen’s criminal conduct and immigration misconduct, coupled with an assessment of the risk he poses to the Australian community, I find that the primary consideration of protecting the Australian community weighs strongly in favour of refusing his visa application.
Best interests of minor children in Australia
Paragraph 11.2 of the Direction requires that I consider whether refusal of Mr Nguyen’s visa application is, or is not, in the best interests of minor children affected by the decision. Paragraph 11.2(4) of the Direction sets out factors that must be considered where relevant.
Mr Nguyen is the biological father of two children who are Australian citizens:
(a)David Nguyen (DOB: 7 June 2015): David resides with Mr Nguyen in Vietnam, and is cared for when Mr Nguyen is working by the Applicant’s mother – who part-owns the family business employing Mr Nguyen; and
(b)Helen Nguyen (DOB: 9 October 2013): Mr Nguyen’s relationship with Helen’s mother ended in April 2014, and he has had no contact or a continuing role in his daughter’s life since then. I note Mr Nguyen’s intent to make enquiries about Helen’s welfare in the future.
Mr Nguyen is also step-father to Louis (DOB: 13 January 2013), who is the product of a relationship Mrs Nguyen had after separating from Mr Nguyen in 2010.[65] Louis lives with the Applicant in Australia and has visited Mr Nguyen in Vietnam on a number of occasions. The Applicant and her sister submit that Louis considers Mr Nguyen to be his father as he has no contact with his own father. Mrs Nguyen chooses to remain in Australia with Louis to enable him to go to school here and submits that she cannot return permanently to Vietnam because Australia is her home and provides the best opportunities for her children into the future.
[65] Applicant’s Submissions in Reply dated 13 June 2017, paragraph 77.
I am satisfied that Louis has stayed for extended periods with Mr Nguyen in Vietnam, maintains meaningful contact with him by phone and internet, and shares the same close and loving relationship with his step-father that Mr Nguyen shares with David. Mr Nguyen says he prefers to educate and raise David and Louis in Australia, because he wants the best for their future and the opportunities are greater here than in Vietnam. He wants to reunite his family in Australia and share the daily responsibilities of raising them with the Applicant. I am satisfied from the evidence that the interests of David and Louis weigh strongly in favour of approving Mr Nguyen’s visa.
Expectations of the Australian community
Paragraph 11.3(1) of the Direction states:
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 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.
Although it is ultimately a matter of judgment to determine the expectations of the Australian community, that judgment must be made on the basis of facts established by the evidence, and must be able to be explained. Consistent with the Direction, there is an expectation in the Australian community that non-citizens will respect Australia’s laws. In this regard I note the framework principles within the Direction highlight the Australian community’s low tolerance for visa applicants who engage in criminal or other serious conduct – particularly those who have been participating in, and contributing to, the Australian community for only a short period of time.
Of the five years Mr Nguyen has spent in Australia, approximately 80% of that time has been spent either in prison, as an unlawful non-citizen, or in immigration detention. He has engaged in serious criminal conduct and serious immigration misconduct. By any measure he has breached the trust of the Australian people and the nature of the character concerns arising from his conduct are such that the Australian community would expect that a visa not be granted.
I therefore find that the primary consideration of expectations of the Australian community weighs strongly in favour of refusing Mr Nguyen’s visa application.
OTHER CONSIDERATIONS
International Non-refoulement obligations

Paragraph 12.1(1) of the Direction requires consideration of whether an obligation exists … not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. I note that in August 2013, while an unlawful non-citizen in Australia, Mr Nguyen applied for a Protection Visa based on his fear of criminal groups in Vietnam.[66] This application was refused by the Department in December 2013. After voluntarily departing Australia for Vietnam in August 2014 Mr Nguyen has lived in Vietnam with his son, works for the company owned by his wife’s family, and has established his life there.[67] His wife has visited him on 5-6 occasions including when they re-married in February 2015 and most recently in early 2017. There is no evidence of international non-refoulement obligations being relevant to this case. It therefore follows that this consideration does not weigh in favour of or against the grant of a Partner Visa to Mr Nguyen.
[66] Exhibit R1, p.82, paragraph 4.
[67] Exhibit R1, p.110, paragraph 7.
Impact on family members
Paragraph 12.2(1) of the Direction states:
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.
Mr Nguyen, his biological son, his parents and the Applicant’s parents all reside in Vietnam, where Mr Nguyen states he has established his life.[68] His wife who is a permanent resident, and his stepson who is an Australian citizen, live in Australia but have spent extended periods in Vietnam with Mr Nguyen since he returned there in 2014. I accept that the consequences of Mr Nguyen’s inability to return to Australia are causing stress for his wife and stepson, who understandably want to reunite as a family. I have also considered the Applicant’s reference to the impact on her psychological health, causing her to previously seek support from a psychologist. But on the evidence before me, there appears no reason, apart from their understandable preference, why the family could not reunite in Vietnam if this application was unsuccessful.
[68] Exhibit R1, p.104.
I accept that both the Applicant and Mr Nguyen consider Australia offers better opportunities for education, health support and income than Vietnam. But the evidence shows Mr Nguyen owns a car and land in Vietnam, and is in secure employment in a managerial role.[69] Mr Nguyen has clearly established himself in Vietnam with substantial supports to rely upon. His wife, on the other hand, lives in Australia as a single parent, reliant on income support payments and financial support from Mr Nguyen and her sister. Mrs Nguyen states that she needs the support of her partner financially and emotionally to cope. But there is nothing in the evidence to suggest that desired family reunion could not be accomplished in Vietnam. On balance, however, I find that the impact on family members weighs marginally in favour of approving Mr Nguyen’s visa application.
[69] Exhibit R1, p.110, paragraph 7.
Impact on victims
Paragraph 12.3(1) of the Direction states:
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;
There is no specific evidence before me in relation to the impact on victims. It therefore follows that this consideration does not weigh in favour of or against the grant of a Partner Visa to Mr Nguyen.
Impact on Australian business interests
Paragraph 12.4(1) of Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation 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.
There is no evidence that Australian business interests will be affected by a refusal of Mr Nguyen’s visa application. It therefore follows that this consideration does not weigh in favour of or against the grant of a Partner Visa to Mr Nguyen.
CONCLUSION
After weighing up all of the evidence and the applicable law, I find that Mr Nguyen does not pass the character test as defined at section 501(6) of the Act. In making a supervening determination regarding the discretion granted by section 501(1) of the Act, I have had regard to the relevant considerations in the Direction and applied them to the specific circumstances of Mr Nguyen’s case.
Mr Nguyen’s conduct during his five year stay in Australia is dominated by his time in prison and as an unlawful non-citizen. His conviction for a serious offence and prolonged disregard of Australia’s immigration law displaces any favourable conduct that might be claimed since his departure from Australia just over three years ago. The primary considerations of protecting the Australian community and the expectations of the Australian community outweigh any other considerations in this matter.
DECISION
It therefore follows that the decision under review is affirmed.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

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

Dated: 17 November 2017

Date of hearing: 27 September and 12 October 2017

Counsel for the Applicant:

Solicitor for the Applicant:

Mr Greg Hughan

Hannah Dickinson

Solicitor for the Respondent:

Adam Cunynghame

[2017] AATA 2276

17 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Appeal