Nguyen and Minister for Immigration and Border Protection (Migration)

Nguyen and Minister for Immigration and Border Protection (Migration) [2017] AATA 1455 (12 September 2017)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2017/3679
GENERAL DIVISION  )
Re: Viet Hoang Nguyen
Applicant

And: Minister for Immigration and Border Protection
Respondent
CORRIGENDUM
TRIBUNAL:               Egon Fice, Senior Member
DATE:   13 September 2017
PLACE:                     Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

The decision on the cover page is changed to read The Tribunal sets aside the decision under review and in substitution decides that the applicant should not be refused a Class UK visa under s 501(1) of the Migration Act 1958 (Cth).

The second line of paragraph [78] is changed to read The decision made by a delegate of the Minister on 21 June 2017 refusing to grant that visa is set aside and in substitution, I determine that Mr Nguyen should not be refused a Partner (Temporary) Class UK visa under s 501(1) of the Migration Act.

...................................................................
Egon Fice, Senior Member
Division:GENERAL DIVISION
File Number(s): 2017/3679
Re:Viet Hoang Nguyen

APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Egon Fice, Senior Member
Date:12 September 2017
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution determines that the applicant be granted a Partner (Temporary) Class UK visa.
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Egon Fice, Senior Member
MIGRATION - application seeking review of decision to refuse grant of Partner Visa – applicant does not satisfy character test due to substantial criminal record – applicant convicted of importing drug precursor – total term of imprisonment of three years – applicant’s offending of a serious nature but on lower end of seriousness scale – applicant assessed as having low risk of re-offending – applicant has made genuine efforts to rehabilitate during imprisonment – granting of visa in best interests of applicant’s children and partner – refusal of visa would impact on applicant’s partner’s business – Australian community would expect applicant be given a second chance – decision under review set aside and substituted with decision granting Partner Visa
Legislation
Migration Act 1958 (Cth) ss 116, 501
Migration Regulations 1994 (Cth) Reg 2.43 (1)
Secondary Materials
Ministerial Declaration No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Scott Morrison MP, Minister for Immigration and Border Protection)
REASONS FOR DECISION
Egon Fice, Senior Member
12 September 2017

Mr Nguyen is a citizen of the Republic of Vietnam. He was first granted a Student Visa Class TU in 2008. He arrived in Australia on 22 August 2008. That visa was renewed on a number of occasions until Mr Nguyen departed Australia, returning to Vietnam on 4 March 2010. Mr Nguyen came to Australia again on 19 October 2012 on a Visitor (Class TR) Visa for a period of about three months. In 2013 Mr Nguyen obtained another Student Visa Class TU and returned to Australia on 19 October 2012. That visa expired on 19 January 2013 following which Mr Nguyen was granted another Student Visa Class TU in 2013. Mr Nguyen departed Australia for Vietnam on 26 January 2013 for a brief holiday, returning on 28 February 2013. He has remained in Australia since.
In a letter dated 29 March 2016 from the Department of Immigration and Border Protection (the Department), Mr Nguyen was informed that his Student Visa was cancelled from that date. The reason for cancellation was that an officer of the Department determined that Mr Nguyen had been convicted of an offence against the law of the Commonwealth. The cancellation was made pursuant to s. 116(1) of the Migration Act 1958 (the Migration Act). The prescribed ground for cancelling his visa was based on Regulation 2.43 (1) of the Migration Regulations 1994. Mr Nguyen had been convicted in the County Court of Victoria on one charge of importing a commercial quantity of a border controlled precursor, pseudoephedrine. On 28 October 2015 he was sentenced to a term of three years imprisonment with a non-parole period of 20 months.
Mr Nguyen, who had divorced his first wife on 10 November 2014, met his current wife, Trang Thu Tran, in April 2014 and they were married on 1 December 2014. Mr Nguyen lodged an application for a Partner Visa on 18 December 2015, the same day on which he was notified of an intention to cancel his Student Visa. The notice informing Mr Nguyen that his Student Visa was cancelled on 29 March 2016 also informed him that if he lodged a further valid application for a visa, he may be granted a bridging visa which would remain in effect until notified of a decision on that application.
On 16 March 2017 the Department sent a notice to Mr Nguyen informing him of its intention to consider refusal of his application for a Partner (Temporary) (Class UK) visa. In a letter dated 21 June 2017, an officer of the Department informed Mr Nguyen that his application for a Partner Visa was refused pursuant to s. 501(1) of the Migration Act. The reason for refusal was that Mr Nguyen did not satisfy the Minister for Immigration and Border Protection (the Minister) or a delegate of the Minister that he passed the character test because he had a substantial criminal record (s. 501(6)(a) of the Migration Act).
On 21 June 2017 Mr Nguyen lodged an application with the Tribunal seeking review of the decision made by a delegate of the Minister to refuse to grant him a Partner Visa.
Section 499(1) of the Migration Act provides:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
…
(2A) A person or body must comply with the direction under subsection (1).
The current direction made by the Honourable Mr Scott Morrison on 22 December 2014 is described as Direction No. 65 (the Ministerial Direction). Part B of the Ministerial Direction applies to non-citizens who have been refused a visa.
Section 501 of the Migration Act deals with refusal or cancellation of visas on character grounds. Relevantly, it provides:
(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.
Note: Character test is defined by subsection (6).
…
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)…
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
…
Given that Mr Nguyen was sentenced to a term of imprisonment of 36 months, he does not pass the character test. That is not disputed. Therefore, the only matter which is in issue in this case is whether, on considering the Primary and Other considerations under the Ministerial Direction, the preferable decision is to refuse to grant to Mr Nguyen a Partner Visa. Prior to examining in detail the Primary and Other considerations, I need to set out some preliminary matters referred to in the Ministerial Direction.
THE MINISTERIAL DIRECTION
The preamble to the Ministerial Direction states that it contains the objectives of the Direction and general guidance for decision-makers including the principles that provide the framework within which decision-makers should approach their task.
In clause 6.1, which deals with Objectives, the relevant sub-clause is (2) which provides:
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.… 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.
Clause 6.2 of the Ministerial Direction provides general guidance. Significant in this case is the following:
(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.
The Principles to be applied are set out at clause 6.3. Relevant to this case are the following:
(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 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)   …
(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.
Clause 8 deals with taking the relevant considerations into account. It provides:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C. 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.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke the mandatory cancellation of the visa.
(4) Primary consideration should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
In order to properly apply the considerations which I must address in the Ministerial Direction, I should examine, in some detail, the circumstances which gave rise to Mr Nguyen’s criminal offending.
THE CRIMINAL OFFENDING
Mr Nguyen does not have a criminal record in Vietnam. That was confirmed by the issue of a Certificate of Criminal Record No. 1 from the Department of Justice in Hai Phong.
In Australia, he has been convicted of one offence and, although he pleaded guilty to a second offence, no conviction was recorded. Those offences are:
(a)importing/exporting commercial quantities of border controlled precursors; and
(b)handle/receive/retention of stolen goods – deal with property suspected proceeds of crime.
Mr Nguyen’s conviction for the first offence was on 28 October 2015 when he was sentenced to imprisonment for three years to be released after serving 20 months on entering into a recognizance (self) of $1000 to be of good behaviour for two years. For the second offence, on 4 February 2014 at the Sunshine Magistrates Court he was ordered to pay $750 into the court fund and no conviction was recorded. The Department’s concern is only with the conviction described in (a).
The best starting point for this analysis is the sentencing remarks of his Honour Judge Chettle. His Honour said:
3 Briefly stated, in March 2013 you imported from Vietnam a package containing books and four boxes of Korean tea. Inside the tea were two bags containing a total of 2617 g of substance, found to be 67.6% pseudoephedrine. That is, 1769 g pure. A search warrant was executed at your premises in Sunshine West on 26 March 2013, and your mobile phone was seized. On that phone was a photograph of the consignment details of the imported package.
4 You also had a note stored on the phone that read, in part, “I know someone who has the precursor that makes ice. If okay, I can find one kilogram of that for you. She told me it’s 45”. When interviewed by Federal authorities you denied involvement in the importation, you said you did not know why your name and address was on the package. You lied to investigators.
…
6 Your charge was listed as a trial up until 24 July of this year. When the translations of the prosecution exhibits were clarified, you admitted your guilt and pleaded guilty on that date. It is unclear exactly what was intended for the pseudoephedrine you imported. There is no evidence that you were going to manufacture an illicit drug, or distribute such a drug. It is clear, however, that the precursor was imported in order for someone to make methylamphetamine, and that enterprise was motivated by a desire for financial gain. You are not a drug user, but clearly intended to profit from your crime.
7 You asserted to Mr Cummins and through your counsel that you were prevailed upon by someone called Kevin to provide personal details to facilitate the importation. As I made clear during your plea, I do not accept your recent self-serving assertions that are totally unsupported by evidence. Your counsel declined to call you and give evidence as to these issues at your plea hearing. The contents of the note on your phone make your involvement in the importation crystal-clear. I reject the assertion that you were set up by a third party.
Mr Nguyen also provided a statement of his evidence dated 9 August 2017 setting out the circumstances of his offending. In fact, at the hearing, I was informed that his statement and in particular paragraphs dealing with the circumstances of his offending, were not correct and that I should accept an amended statement of evidence dated 30 August 2017. In addition to those two statements provided by Mr Nguyen, I also had a report written by Dr Peter Cook, a clinical psychologist, dated 28 August 2017. In that document, Dr Cook provided a further variation of the circumstances of his offending given by Mr Nguyen. I also had the oral evidence of Mr Nguyen given at the hearing. There were also some variations in that evidence.
I should say at the outset, it is somewhat discouraging to have so many different versions of one event and I am cautious not to speculate why that is the case. Nevertheless, some of those variations do permit reasonable inferences to be drawn. In his first statement of evidence (dated 9 August 2017), regarding the reference to the person called Kevin which was recorded by Judge Chettle in his sentencing remarks, Mr Nguyen said:
Kevin told me that he had been doing this in order to clear a large debt that he owed to a gang of drug dealers and because his family needed money to pay for his father’s medical expenses in Vietnam. Kevin’s father needed to have a kidney transplant. (My emphasis)
In his second witness statement which was taken into evidence at the hearing (dated 30 August 2017), at paragraph 8, the words I have emphasised were deleted and instead the explanation given was: His family later told me that Kevin owed money to a gang of drug dealers. Mr Nguyen did not clarify what he meant by the words: His family later told me. The reason given by Mr Nguyen for the amendment in his oral evidence was that there had been a misunderstanding involving the interpreter and the solicitor and presumably himself regarding the information he gave regarding Kevin’s involvement. It should be obvious that those offending words do not sit comfortably with Mr Nguyen’s claim that he was unaware that the goods in the package received by him contained any materials which had anything to do with drugs. At paragraph 7 of his first statement, he said:
When we were living together Kevin told me he was earning money by receiving parcels from overseas through the post office address to other people. He said the parcels contained tobacco, medicines and pharmaceutical products and some valuable goods. He said that his fee depended on the quantity and weight of goods, but that by doing this he was earning on average about $AU 1-3,000 for each package and $AU 5 – 10,000 per month in total. He described to me that he was smuggling these things.
His first statement, that Kevin owed a gang of drug dealers money, must necessarily have alerted Mr Nguyen to the very serious probability that he was being asked to become involved in illegal drug or substance importation. No doubt Mr Nguyen was keen not to convey that knowledge. In fact, at his sentencing hearing, it was put on his behalf that he had been set up. It appears this was an attempt to continue that theme despite its rejection by Judge Chettle.
The third variation of the account was given to Dr Cook for the purpose of writing a report directed specifically to the risk of Mr Nguyen reoffending at some future date. Dr Cook said the following at page 7 of his report:
Mr Nguyen initially said that he had agreed to be involved in the importation of the precursor substance because he was feeling resentful that others who hadn’t undertaken his level of education were achieving financially whereas he was not. He said he believed that the importation wasn’t significant as he was not importing drugs and there was a small amount involved.
Subsequently Mr Nguyen requested a second consultation with me and told me that he had been concerned that revealing the actual circumstances associated with his offending, as he had believed that this might lead to police re-opening investigation into the matter and he wanted to avoid this at all costs. He said his legal representative reassured him that further investigation wouldn’t occur and accordingly he provided the following account.
Mr Nguyen also told Dr Cook that Kevin told him the package being imported contained cigarettes, pharmaceutical products and valuables. Apparently Kevin told Mr Nguyen that the goods were brought into Australia in this way to avoid taxes. This statement appears not to have been questioned by Mr Nguyen. Although import duties do apply to certain importations, it is unlikely that the extremely small quantity of goods imported on the occasion when Mr Nguyen was seized for being in possession of pseudoephedrine would attract any duty. Even if they did, it would be small. It would hardly warrant the payment of up to $3000 for accepting a parcel on behalf of the sender, whoever that was.

Furthermore, in the course of his oral evidence, I asked Mr Nguyen if he could explain to me what he understood a precursor was. He said it was a substance used for the manufacture of medicines. Of course, medicines are simply drugs, usually obtainable legally on the prescription of a medical practitioner. I have no doubt whatsoever that Mr Nguyen was aware that the precursor was likely to be used in the production of illicit drugs. In fact, as stated in Judge Chettle’s sentencing remarks regarding a note stored on his mobile phone: I know someone who has the precursor that makes ice. If okay, I can find 1 kg of that for you.…. Judge Chettle said that although there was no evidence that Mr Nguyen was intending to manufacture an illicit drug or to distribute such a drug, it was clear that the precursor was imported in order to permit someone to make methylamphetamine (commonly referred to as ice).
The first explanation offered by Mr Nguyen, that he was resentful of others who were financially better off but without his level of education, also leads to another pathway of enquiry. The absence of details regarding the whereabouts of the elusive Kevin and his involvement with drug manufacturers leaves many unanswered questions. In his second statement Mr Nguyen said that for the first time in this matter, he had decided to tell the truth about what happened. Despite that statement, which is also set out in his first witness statement, within three weeks he had already changed his statement. Although the change was said to be of a minor nature rectifying a misunderstanding, plainly it was much more than that. He did admit that he was not prevailed upon by Kevin to receive the illicit goods. That was the version he gave to Judge Chettle. He also agreed that he had not been set up by a third party as was the story given to the County Court.
Nevertheless, Mr Nguyen strongly retained his evidence regarding the existence of Kevin and provided his real name which he said was Dao Tung Anh. He said he met Kevin in December 2012. He was the second cousin of his first wife. He said that Kevin’s father and his former father-in-law were cousins. Kevin was about 10 years younger than Mr Nguyen. When he had returned to Vietnam, he said his former mother-in-law gave him Kevin’s phone number because he was living in Melbourne and suggested that he contact him. Mr Nguyen said he did that when he arrived back in Australia. Kevin was sharing a house with other people in St Albans. He said he had regular contact with Kevin, going to his home on two occasions. Kevin also visited Mr Nguyen’s home.
Mr Nguyen said that in January 2013, when he went back to Vietnam to celebrate the Lunar New Year, Kevin remained in Australia. On his return on 28 February 2013 Kevin visited him and told him he could no longer stay at his house in St Albans because the landlord wished to renovate the premises. As Mr Nguyen described it, out of the blue Kevin asked him to if he could stay temporarily at Mr Nguyen’s house although he indicated he was planning to leave Melbourne in several weeks. When living together Kevin told him that he was earning money receiving parcels from overseas through the post office addressed to other people. He said Kevin told him he was going away for a short time and was worried he would lose his work (that is the illegal import of substances through the post). Mr Nguyen said Kevin told him that the worst thing which could happen to him was that he would get a fine for illegally importing substances. He said he agreed to help Kevin because he was extended family and in a difficult situation because he needed the money for his father to have a kidney operation.
Mr Nguyen then provided what can only be described as implausible evidence. He said that Kevin gave him information about the package which would be sent to him and he (Mr Nguyen) saved that information on his mobile phone. He said Kevin used his phone to communicate with his associates. No reason was given for that. Plainly, Kevin had his own phone and Mr Nguyen had his phone number. No explanation was given for why communications regarding the illegal importation were conducted on Mr Nguyen’s phone rather than Kevin’s phone given that Kevin had the contact in whichever country the parcel was sent from. Mr Nguyen maintained, despite Judge Chettle stating to the contrary, that he did not intend to make any profit from the transaction and he was simply helping Kevin and his family.
That explanation is in stark contrast to what Mr Nguyen first told Dr Cook was the reason why he became involved in the illicit importation. He clearly expressed envy about others with a lower level of education achieving financially whereas he was not. The chronology of events also tells its own story. Mr Nguyen went to Vietnam for the New Year celebrations on 26 January 2013. He returned to Australia on 28 February 2013. On

26 March 2013 the police searched his house, having obtained a search warrant on information that a parcel had been delivered to him. Therefore, for Mr Nguyen’s story to make sense, in a period of about three weeks after arriving back in Australia from Vietnam, he had discussed the importation of the parcel with Kevin; had agreed to participate in the scheme; had given to Kevin the information needed to post the parcel to his address; and that information had been passed on to the sender of the illicit goods. The sender then managed to obtain all of the goods required to conceal the shipment of pseudoephedrine and had posted it, the parcel arriving shortly before 26 March 2013. In his cross-examination, when asked when Kevin moved out of his house, Mr Nguyen said although he could not recall, it was between 24 and 26 March 2013. Logically, one might ask why Kevin moved out without taking the parcel with him as it probably arrived while he was still living there.
Although it is impermissible for me to speculate, a reasonable inference to be drawn from that chronology is that Mr Nguyen entered into an arrangement with somebody in Vietnam to send the parcel to him shortly after he had arrived back in Australia. That is consistent with what Mr Nguyen told Dr Cook at the outset regarding feeling resentful that those with a level of education below his were achieving financially whereas he was not. In other words, he did stand to gain financially from the importation. This is also consistent with what Judge Chettle said in the sentencing remarks where he said he did not accept Mr Nguyen’s recent self-serving assertions which were totally unsupported by evidence.
There are further doubts about the evidence given about the elusive Kevin. Despite having his telephone number, there was no evidence that upon receipt of the parcel, Mr Nguyen had attempted to contact him (assuming he had left by that stage). That would have been evident because the police examined Mr Nguyen’s telephone which they confiscated on his arrest. Mr Nguyen then said he was unable to contact Kevin despite attempting to do so after being arrested and charged with the offence. If in fact the parcel had been intended for Kevin, assuming he moved out of Mr Nguyen’s house before its arrival, there would be no reason for Kevin not to have responded to a telephone call from Mr Nguyen as he would not have been aware of Mr Nguyen’s arrest. Mr Nguyen’s claim that Kevin used his phone from time to time for the purposes of the importation was not accompanied by any plausible explanation. Clearly Kevin had his own telephone. The vague and contradictory evidence about Mr Nguyen’s involvement in the importation of pseudoephedrine causes me considerable concern about the veracity of his evidence.
APPLICATION OF THE MINISTERIAL DIRECTION
As indicated above, I am required to take into account relevant Primary and Other considerations.
PRIMARY CONSIDERATIONS
Part B, clause 11 sets out the primary considerations. It provides:
(1) In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:
(b)Protection of the Australian community from criminal or other serious conduct;
(c)The best interests of minor children in Australia;
(d)Expectations of the Australian community.
Protection of the Australian community
Clause 11.1 of the Ministerial Direction provides:
(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:
(e)The nature and seriousness of the non-citizen’s conduct to date; and
(f)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Prior to the offending which is the subject of this application, Mr Nguyen had not previously engaged in criminal or other serious conduct. It seems to me that this should be taken into account when considering whether the refusal to grant him a Partner visa was the preferable decision.
Nature and seriousness of criminal offending
It cannot be disputed that Mr Nguyen’s criminal offending was serious. A sentence of three years imprisonment, four years had there not been an early guilty plea, is indicative of serious offending. While it may not be anywhere near the upper end of the range for the offence of importing drugs, it is nevertheless significant.
The importation of a precursor, particularly pseudoephedrine, must be taken into account as a serious offence. Pseudoephedrine is a precursor used in the production of methamphetamine which is highly addictive and destructive. Its prevalence in the community is frequently the subject of news reports, particularly those where a person who has taken ice has been involved in violent altercations or in the reckless use of motor vehicles. It is responsible for many deaths, including those of innocent victims. Although Mr Nguyen’s evidence was that he did not know the nature of the importation other than it was a precursor, I do not accept that evidence because of his previous statement regarding the problems the elusive Kevin had with drug gangs and the note on his mobile phone discussing the finding of a precursor for ice. Furthermore, Mr Nguyen is an intelligent individual, as was found by Dr Cook, and I have no doubt that he was fully aware that the precursor was pseudoephedrine and that he was aware it was to be used in the production of methamphetamine.
Although Mr Nguyen only committed the single offence of importing a prohibited substance, I have no reason to doubt that the importation was not intended simply as a single event for the benefit of Kevin. The cumulative effect of repeated offending in this case would be extremely serious, creating significant danger to innocent members of the Australian community. Nevertheless, I accept that at this point in time, Mr Nguyen’s offending is limited to a single event.
Risk to the Australian community should Mr Nguyen re-offend
As I have already indicated above, the risk to the Australian community should Mr Nguyen re-offend is significant. Clause 11.1.2 of the Ministerial Direction relevantly provides:
(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 a seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In 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,
(g)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(h)The likelihood of the non-citizen engaging in further criminal or serious conduct, taking into account:
(i)     information and evidence on the risk of the non-citizen re-offending; and
(ii)    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decision should not be delayed in order for rehabilitative courses to be undertaken); and
(iii)    the duration of the intended stay in Australia.
…
I had in evidence records from Corrections Victoria, Sentence Management Unit, which considered Mr Nguyen’s behaviour and risk of re-offending in November 2015 and 2016. In the November 2015 report, Mr Nguyen’s assessment of re-offending was said to be low. In the second report dated 5 November 2016, Mr Nguyen identified a number of goals he was seeking to achieve. They included remaining incident free so as not to lose contact visits with his family. He also attended weekly classes to improve his English skills which he described would assist him in reintegration into society upon release. He was reported as being keen, punctual, able to work without direction and was a self-starter. There was also a noticeable improvement in his spoken English. He also mentioned that he intended to work with his lawyer and the Department of Immigration in an effort to obtain a visa so that he could remain in Australia.
As for the work he was conducting while in prison, the report stated that Mr Nguyen had received excellent reports from prison officers stating he had settled into the role well, was always cheerful, had a good rapport with other prisoners and was always asking what else he could do to help. The report also mentioned that Mr Nguyen was a keen gardener, tending to the vegetable patch which he created. In his oral evidence on the hearing of this matter, Mr Nguyen said that he was instrumental in introducing the growing of vegetables at the prison grounds and that he had encouraged other prisoners to participate, which they did. The report also stated:
Hoang [Mr Nguyen] is always polite and respectful to all staff members and does not have any incidents recorded whilst being in custody nor any entries in the MOR. Hoang is engaged in employment and education and receives excellent reports from both. Hoang has no separation or placement issues at Middleton.
Dr Cook assessed Mr Nguyen for the likelihood of him re-offending. Dr Cook said he utilised a study produced by the Ministry of Justice in the United Kingdom which provided a summary of decades of research concerned with the prediction and prevention of criminal recidivism. That study reported that the risk factors associated with re-offending included substance abuse, repeat offending, impulsivity or low self-control, involvement in social networks associated with crime, lack of social and intimate relationships and poor housing.
Dr Cook also pointed out that a number of factors were also identified which were directly associated with a reduced likelihood of re-offending. In their application to Mr Nguyen, he identified first time in custody; employment in the 12 months before custody and the likelihood of ongoing employment; reporting feeling worried about spending time in prison; being older (each year of age being associated with a 2% reduction in the odds of reoffending); strong family and other relationships, having something to give to others and having a place within a social group; sobriety; not having a criminal identity; and hope and motivation. Dr Cook found that each of these factors were positive in Mr Nguyen’s case.
In his concluding opinion, Dr Cook mentioned that although Mr Nguyen asked to see him on a second occasion in order to provide a different version of events as first described, Dr Cook said that the second version of events was entirely consistent with what he told police at the time he was charged. That was that he had no idea that he was importing drug related substances. In cross examination, Mr A Cunynghame, a solicitor acting on behalf of the Minister, asked Dr Cook whether he was aware that Mr Nguyen had changed his account of his involvement in the importation of the unlawful substance on another occasion, referring to the two different statements to which I have referred above. Dr Cook said he was not. When asked if that would alter his opinion, at first he indicated that it would not. However, when taken to all of the changes which were made to the statements prepared on behalf of Mr Nguyen including the fact that he was aware, when he agreed to receive the parcel, that it would contain a precursor, Dr Cook expressed some doubt about his opinion regarding Mr Nguyen’s risk of re-offending. However, he did not expressly resile from his previous opinion.
The evidence on this consideration, while not strong, nevertheless indicates that Mr Nguyen is at a reasonably low risk of re-offending.
Best interests of minor children in Australia
Clause 11.2 of the Ministerial Direction relevantly provides:
(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.
(3) If there are two or more relevant children, then the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
(i)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);
(j)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;
(k)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;
(l)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 maintain contact in other ways;
(m)Whether there are other persons who already fulfil a parental role in relation to the child;
…
Mr Nguyen is the biological father of one young child, who is about two years of age and the stepfather of two further children under the age of 18 years, all of which are Australian citizens. He is also the biological father of two further children who are in Vietnam and therefore outside the ambit of these considerations.
The interaction with his young biological child, who was born on 18 August 2015, is very limited given that Mr Nguyen has spent 20 months in prison, being incarcerated since 23 October 2015 and, upon release on parole, in immigration detention.
Mr Nguyen’s oral evidence was that the two stepchildren did not visit him while he was in prison. He said that was because he did not want them to have a different impression of him and so change their behaviour. He was concerned that might cause some psychological damage. Nevertheless, he said that he had constant telephone contact with them while he was imprisoned. In his evidence-in-chief, Mr Nguyen said that prior to being imprisoned, he was involved with preparing meals for his two stepchildren, he prepared their lunches and took them to school. In the afternoon he picked them up from school and often prepared the evening meal. He also assisted the elder child with schoolwork. If the children’s parent or parents were required to attend the school for meetings with teachers, he attended. Apparently one of the children also required a tutor and he took that child to and from the tutor on the weekend.

Mr Nguyen said that the biological father of the two stepchildren played no role in their day-to-day care. I also had evidence from Ms Trang that the biological father did come to the house from time to time to take the children on outings and return them on the same day. Mr Nguyen maintained that the biological father did not contribute financially to their support.
Ms Trang‘s evidence was that she operated a small business in the nature of a kiosk at a shopping mall where she sold mobile phones and the like. She did not have support from any family members in Australia and therefore, since Mr Nguyen’s incarceration, her attention to the business needed to be structured around collecting the children after school. She indicated that her mother came to Australia from Vietnam from time to time, staying for three to four months. Ms Trang also said that Mr Nguyen’s biological child had been diagnosed with attention deficit hyperactivity disorder (ADHD). Furthermore, Ms Trang said she had been diagnosed with hepatitis B and she needed to have constant medical attention and medical tests, the time for which she found difficult to set aside. Ms Trang also said that she looked after Mr Nguyen’s biological child by taking him to the kiosk where she operated the business and on occasions, she had a friend who would take care of him. In the course of her cross-examination Ms Trang said she did have an employee who assisted in the business between Thursday and Sunday.
It is clear from the evidence that Ms Trang has significant difficulty in coping with the raising of three children, one of them very young. At the same time, she runs a business which occupies much of her working day. It is also clear that Mr Nguyen played a significant parental role in respect of all three children, even though it was for a relatively short period of time. For the younger child, it was only a matter of some months while for the older two children, for a period of about three years. From the perspective of the children, it is plain that in these circumstances, they would all benefit significantly if Mr Nguyen were able to continue in his parental role.
Expectations of the Australian community
As is stated in the Ministerial Direction, the can be no doubt that the Australian community expects non-citizens to obey Australian laws while they are in Australia. There are two limbs to this consideration. The first is the offending itself and the second is whether there is an unacceptable risk that they will breach the trust placed in them not to offend again in the future.
Regarding the nature of the offence, because it is drug related, it is likely that the Australian community would expect Mr Nguyen not to be granted a visa. That is particularly so given that the substance imported, pseudoephedrine, is used in the production of methylamphetamine.
On the other hand, the evidence indicates that the risk of Mr Nguyen repeating this offence or committing other serious offences has been assessed as low. His prison record is faultless and he initiated the development of a vegetable garden at the prison grounds. That appears to have had a significant positive impact on other prisoners. Prison staff have referred to Mr Nguyen’s behaviour in very positive terms. On its face, it appears Mr Nguyen has seriously attempted to rehabilitate himself. Of course I accept that in the confines of a prison, that may be regarded as relatively minor. However, having seen many prison reports in the course of hearing cases of this nature, I am aware of the prevalence of drugs in prisons and the pressure on individuals in those prisons to become involved not only in drug supply and abuse, but also in violent activity. Mr Nguyen has completely avoided those situations. That evidence speaks positively about Mr Nguyen’s prospects of rehabilitation once out in the community.
I should also take into account the fact that this offending is the first and only conviction recorded by Mr Nguyen either in Australia or in Vietnam. It is reasonable that I consider that Mr Nguyen has been of good character up until this time. This second limb of this consideration would probably result in the Australian community giving Mr Nguyen a second chance to demonstrate his rehabilitation which appears to have progressed satisfactorily since being incarcerated.
OTHER CONSIDERATIONS
Clause 12 of the Ministerial Direction provides that in deciding whether to cancel a visa, other considerations must be taken into account where relevant. It lists a number of non-exclusive considerations. Those relevant in Mr Nguyen’s case are:
(c)impact on family members; and
(d)impact on Australian business interests.
Impact on family members
Given the evidence I have referred to above, the can be no doubt that the impact on Ms Trang, Mr Nguyen’s biological child and two stepchildren will be detrimental if he is not permitted to reside in Australia. That situation is compounded by the health of Ms Trang and Mr Nguyen’s biological child. The evidence indicates that Mr Nguyen has developed a good personal relationship with his stepchildren over a period of about three years. He has not had the opportunity to develop a personal relationship with his biological child. It would be most unfortunate for his biological child not to have the benefit of a father.
In her examination-in-chief Ms Trang was asked whether she would return to Vietnam if Mr Nguyen was not granted a visa. She said she would not return to Vietnam but would remain in Australia because she could get better medical treatment in this country than in Vietnam for her hepatitis B condition. She also pointed to the fact that her children were all Australian citizens and there would be problems returning to Vietnam for them given that they have adopted the Australian culture and language. She believed it would be selfish to take her children out of Australia to Vietnam.
Impact on Australian business interests
Although Ms Trang runs a small family business, in my opinion, it should nevertheless be taken into account in this case. The very nature of the business requires the frequent if not constant attendance of its principal, that is, Ms Trang. For the past two years she has been juggling the needs of her business and the care of three children, which has clearly been difficult. If Ms Trang were to lose that business, quite plainly she would become dependent on Social Security payments. That is not a desirable outcome in the circumstances. Furthermore, she has one employee who would obviously become unemployed were that to occur. That is also not a desirable outcome in an environment where small business is encouraged to flourish.
SHOULD MR NGUYEN BE GRANTED A PARTNER (TEMPORARY) CLASS UK VISA
The first primary consideration, the protection of the Australian community, requires examination of two limbs. The first is the nature and seriousness of the non-citizen’s conduct up to the date of the decision. There can be no disputing that Mr Nguyen’s criminal offending was serious. Taking into account the circumstances of his offending and the need for general deterrence, Judge Chettle sentence Mr Nguyen to three years imprisonment with a minimum term of 20 months before being eligible for parole. The illegal substance sought to be imported was clearly for the manufacture of methylamphetamine and that was known to Mr Nguyen at the outset. Mr Nguyen must also have been aware of the deleterious effects that ice has on its users and the consequent danger that imposes on the Australian community. Looking at this consideration in isolation, it clearly weighs heavily against the issue of the visa Mr Nguyen is seeking.
If Mr Nguyen were permitted to remain in Australia, depending on the risk he poses of re-offending, such conduct is likely to have serious harmful consequences on the Australian community. The question then becomes what the likelihood is of Mr Nguyen re-offending. Since his arrest and subsequent imprisonment, Mr Nguyen’s conduct has been exemplary. The assessment of his risk of re-offending has been regarded as low. His conduct discloses a genuine desire for rehabilitation. Dr Cook was provided with numerous relevant documents regarding this case and he interviewed Mr Nguyen over a two-hour period on 24 July 2017. He provided a detailed written report dated 28 August 2017 concluding that, after taking into account all of the indicators relating to the risk of recidivism, Mr Nguyen posed a low risk. He was imprisoned as a result of his first ever offence, had no significant history of offending or substance abuse and had positive social connections. Dr Cook was of the opinion that Mr Nguyen was essentially a man of good character although one who made a significant error of judgement regarding his offending behaviour. Furthermore, Mr Nguyen appeared entirely committed to his family and Dr Cook opined that it was extremely unlikely that he would undertake any action which would jeopardise his involvement or capacity to care for them. That caused Dr Cook to state that there were strong grounds on which to conclude that Mr Nguyen is unlikely to re-offend.
When it was put to Dr Cook that Mr Nguyen had altered his version of the circumstances surrounding his offending in two statements subsequent to his report, and that Mr Nguyen had given Dr Cook different accounts of the circumstances of his offending, he did not resile from his opinion about the risk of re-offending but agreed that it cast some doubt on his opinion.
Like Dr Cook, Mr Nguyen’s various versions of events leading to his arrest and conviction caused me some concern. Similar to Judge Chettle, I cannot accept Mr Nguyen’s self-serving assertions regarding those circumstances which are totally unsupported by evidence. In fact, there is a clear lack of logic in the explanation given, particularly when the notes on his mobile phone are taken into account. Furthermore, of course, I cannot go behind Judge Chettle’s basis for sentencing. In any event, I totally agree with his Honour’s findings and also reject Mr Nguyen’s assertion that he may have been set up by the elusive Kevin. It is not clear to me why Mr Nguyen has persisted with his account. It does raise some concern about his risk of re-offending, given he is not prepared to tell the truth at this point in time. However, on the other hand, I do not know the reasons why that is the case.
Despite that controversy, his subsequent behaviour following his arrest and incarceration does suggest rehabilitation and a low propensity to re-offend. His family ties appear strong and, as Dr Cook reported, that gives Mr Nguyen strong incentive not to re-offend.
The contradictions exposed by the evidence make it difficult to determine the risk to the Australian community, particularly regarding the chances of recidivism. Nevertheless, I find that the evidence regarding the low risk of Mr Nguyen re-offending to be compelling. Simply because a person appears to be less than forthright in explaining the circumstances of their offending does not necessarily lead to the conclusion that the risk of re-offending is heightened. Mr Nguyen has not disclosed why he has chosen to maintain the Kevin explanation for his offending. However, that does not necessarily indicate he has not been forthright since the offending. In fact, his actions plainly speak louder than words. His conduct in prison has been exemplary and he has used his initiative to improve the outlook of other prisoners by the establishment of the vegetable garden. He has also assisted prison officers by acting as an interpreter for other Vietnamese inmates.
Mr Nguyen has parental responsibility for two stepchildren and one biological child. He has played a significant role in the development of his stepchildren. He has only had limited contact with his biological child. Nevertheless, taking into account the health problems Ms Trang faces, I find it is clearly in the interests of all three children that Mr Nguyen remain in Australia and continue his parental role.
I have found that the expectations of the Australian community, when looking simply at the seriousness of his offending, would come to the conclusion that he should not be granted a visa. That is due to the nature and seriousness of the drug which it was intended would be produced by importation of the pseudoephedrine.
However, the Australian community would also take into consideration Mr Nguyen’s risk of re-offending and his good conduct and character prior to his first and only conviction. The Australian community would also take into account his behaviour in prison and the steps he has taken towards rehabilitation. Taking into account all of the factors necessary to come to a conclusion, I find that the Australian community would, in Mr Nguyen’s circumstances, grant him a second chance.
The other considerations, while generally given less weight, also support Mr Nguyen’s claim that he should be granted a visa. The impact on family members would be severe in the circumstances, particularly having regard to the ill-health of his wife, Ms Trang. Ms Trang made it clear in evidence that she would not return to Vietnam if Mr Nguyen was not granted a visa permitting him to remain in Australia.
Finally, there will be a financial impost on the Australian community should Ms Trang close her family business. It will impact not only on her and her children, but also on an employee.
CONCLUSION
Taking into account the considerations to which I must have regard in the Ministerial Direction, while I have found that Mr Nguyen’s criminal offending was serious, there is a low risk of him re-offending. Although that results in some weight being given to the refusal of the visa sought by Mr Nguyen, that is offset by the low risk of reoffending.
The best interests of Mr Nguyen’s stepchildren and biological child definitely weigh in favour of Mr Nguyen remaining in Australia. His wife is not prepared to return to Vietnam should he not be permitted to remain in Australia and the detrimental effect on the children would be significant.
The expectations of the Australian community in this case would also most likely be divided. Drug-related offences, particularly in relation to methylamphetamine, would be regarded as serious and the Australian community would probably not expect the importer of a precursor to be granted a visa. However, once again, there is an offsetting consideration. Mr Nguyen’s conduct in prison was faultless and, on the evidence, helpful to other prisoners. It discloses a genuine desire for rehabilitation. In addition, until his offending at the age of 33 years, Mr Nguyen has been of good character. This particular event does seem to be out of character for him. On those grounds, it is likely that the Australian community would grant Mr Nguyen a second chance.
Regarding the Other Considerations, both the impact on his family members and the impact on Australian business interests weigh in favour of Mr Nguyen remaining in Australia.
While this is by no means a clear-cut case, mindful of the fact that primary consideration should generally be given greater weight than other considerations, I find that the preferable decision is that Mr Nguyen be granted a Partner (Temporary) Class UK visa. The decision made by a delegate of the Minister on 21 June 2017 refusing to grant that that visa is set aside and in substitution, I determine that Mr Nguyen be granted a Partner (Temporary) Class UK visa.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

............................[sgd]............................................
Associate
Dated: 12 September 2017

Date of hearing: 5 September 2017

Advocate for the Applicant: Mr G Hughan

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Advocate for the Respondent: Mr A Cunynghame

Solicitors for the Respondent: Sparke Helmore

[2017] AATA 1455

12 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date of hearing:	5 September 2017
Advocate for the Applicant:	Mr G Hughan
Solicitors for the Applicant:	Carina Ford Immigration Lawyers
Advocate for the Respondent:	Mr A Cunynghame
Solicitors for the Respondent:	Sparke Helmore