Nguyen and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 460
•20 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 460
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1531
GENERAL ADMINISTRATIVE DIVISION ) Re
Thuc-Doan Dinh Nguyen
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date20 May 2005
PlaceSydney
Decision The decision under review is affirmed.
...............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – refusal of spouse visa on character grounds – substantial criminal record and past and present criminal conduct – criminal history in the United States of America – discretion that the tribunal may exercise where the visa applicant fails the character test – necessity to consider the protection and expectations of the Australian community – best interests of the child – examination of the proceedings to deport the visa applicant from the United States – examination of the possibility of the parties being able to live in a third country – found that the applicant knew of the visa applicant’s criminal record from the beginning of their relationship but did not consider that it might be a problem in obtaining a visa, the visa applicant was truthful in completing his spouse visa application as to his convictions, neither the applicant or visa applicant gave evidence that they could not live in Vietnam, the tribunal does not have complete confidence that the visa applicant is rehabilitated, general deterrence weighs against the grant of a visa, there is the possibility of recidivism, found that the child could live with her parents in the US or in Vietnam and that the child’s interests do not weigh decisively in favouring of granting a visa – decision of the respondent is affirmed.
Migration Act 1958 ss 499, 501, 501(6), 501(7)
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
REASONS FOR DECISION
20 May 2005 Professor GD Walker, Deputy President Summary
1. The visa applicant, Keit Thai Hoang Nguyen, who is aged 35 and a citizen of Vietnam, first arrived in Australia on 2 July 2000, departing on 16 July 2000. Since that date, he has visited Australia on four separate occasions. He departed Australia for the last time on 14 May 2002. On 27 August 2001, he married the applicant, Thuc-Doan Dinh Nguyen, and on 17 November 2003, he lodged an application for a subclass 100 spouse (permanent) visa.
2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that Mr Nguyen has a substantial criminal record in the United States of America and is not a person of good character because of his past and present criminal conduct. The respondent therefore refused Mr Nguyen’s spouse visa application. This is the decision to be reviewed by the tribunal.
Background
3. The applicant, Mrs Nguyen, was born in Saigon, Vietnam, on 31 December 1976 and is aged 28. Mrs Nguyen (under the name Dinh Dung Nguyen) was granted Australian citizenship on 31July 1984 (T p93).
4. Mr Nguyen was born in Saigon, Vietnam, on 12 May 1970 and is aged 35. He has been a permanent resident of the United States of America since 17 August 1982, having arrived there with his family as a refugee (T p201). He has never been naturalized as an American citizen. Mr Nguyen was previously married to Loan Kim Tran, the marriage ending in divorce on 30 March 1998 (T p58). No children were born of the relationship.
5. Between 1992 and 1999, Mr Nguyen committed a number of criminal offences in the State of California in the US (using seven aliases) (T pp185-194):
Arrest date
Charges
Court date
Action
8/12/1992
Santa Clara Police
1.Burglary
2.Receive etc known stolen propety
3.Forge name on access card
4.Forge name on access card
24/6/1993
Superior Court, Hayward
1.Burglary:second degree – dismissed, motion of prosecutor.
2.Robbery: second degree – dismissed, motion of prosecutor.
3.False imprisonment with violence etc – dismissed, motion of prosecutor.
4. Robbery: second degree – dismissed, plea to other charge.
5. Attempted robbery, dismissed.
6.False imprisonment with violence – dismissed, plea to other charges.
7.Assault with stun gun – dismissed, plea to other charges.
8.Assault with stun gun – dismissed, plea to other charges.
9.Robbery: second degree – convicted committed to prison. Sentence 3 years. (State Prison San Quentin.)
24/6/1993
Fremont Police
1.Attempted Robbery 2nd degree
1.3 years imprisonment.
27/8/1998
San Jose Police
1. Kidnapping
2.Assault with deadly weapon
3.False imprisonment
4.Threats to commit crime with intent to terrorize.
5.Attempts to dissuade witness/victim
12/11/1998
San Jose Municipal Court
1.False imprisonment – convicted, probation/jail misdemeanour. Sentence 2 years probation, 30 days jail work, $570 fine.
2.Probation reinstated. Sentence 27 days jail.
3.Probation reinstated. Sentence 15 days jail.
3.Probation modified. Probation extended to 11/12/2001.
6. In March 1999, Mr Nguyen telephoned Mrs Nguyen (her family name before marriage also being Nguyen (T p146)) after being given her name by her brother who had met Mr Nguyen in the United States. In February 2000, Mrs Nguyen flew to the United States where Mr Nguyen is currently residing, to meet him. She returned after two weeks (T p40).
7. On 21 June 2000, Mr Nguyen was granted a visitor visa to come to Australia, valid until 31 May 2001. He arrived in Australia on 2 July 2000 departing on 16 July 2000 (T p198). During this time, he stayed with Mrs Nguyen. In February 2001, Mrs Nguyen again travelled to the USA and stayed with the visa applicant for two months, returning in April 2001 (T p40). On 31 May 2001, Mr Nguyen was granted a further visitor visa valid until 12 September 2001 (T p198). He arrived in Australia on 15 June 2001. During this visit, Mr and Mrs Nguyen became engaged and were married in a civil ceremony at the Births, Deaths and Marriages Registry, Sydney, on 27 August 2001 (T p172). Mr Nguyen returned to the US on 27 September 2001 (T p197).
8. On 12 September 2001, a further visitor visa was granted to him, valid until 16 May 2002. He arrived in Australia on 29 November 2001 and lived with Mrs Nguyen and her family, until they both departed for the US on 19 February 2002 (T p41). Mr and Mrs Nguyen both returned to Australia on 20 March 2002 and resided together until Mr Nguyen returned to the US on 14 May 2002 (T p197), where he presently resides.
9. On 15 November 2003, Mr Nguyen’s and Mrs Nguyen’s daughter, Kady Doan Tram Nguyen, was born at the Royal Prince Alfred Hospital for Women, Camperdown, New South Wales (T p169). Since the birth of their child, Mr and Mrs Nguyen have met twice in Vietnam, Mrs Nguyen having been refused entry into the United States (T p213).
10. On 17 November 2003, Mr Nguyen’s migration agent, Parris Kazacos, of Parris & Shah Migration Specialists, lodged a subclass 100 spouse (permanent) visa at the Sydney office of the then Department of Immigration and Multicultural Affairs (“DIMA”) for lodgement at the Australian Embassy in Washington DC (T4 p39). In response to question 68 “Have you, or any other person included in this application, ever been convicted of a crime or offence in any country?” Mr Nguyen answered “yes” and included an undated and unsigned letter about his criminal convictions (T pp114-118). On 8 January 2004, the Australian High Commission in Ottawa, Canada, advised Mr Nguyen’s migration agent that his application had been forwarded to that office for processing and that the average processing time for partner visas was approximately six months (T5 p161).
11. On 4 February 2004, an officer of the migration section at the Australian Embassy in Ottawa requested that the visa applicant provide further information to support his application (T p165). On 23 March 2004, Mr Kazacos responded on behalf of the visa applicant (T8 p167). By letter dated 22 May 2004, and received on 27 May 2004, Mr Nguyen provided copies of his criminal record from the United States Department of Justice to the visa office (T p184).
12. On 18 June 2004, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”), Brisbane Character Assessment Unit, informed Mr Nguyen that he was considering refusing his spouse visa application on the ground that he did not pass the character test because of his substantial criminal record and having regard to his past and present criminal conduct and giving him the opportunity to comment on his intentions (T14 p195). On 8 July 2004, Mr Nguyen’s migration agent, Mr Kazacos, made submissions to DIMIA’s character section, stating that his client had expressed remorse for his behaviour in the past and that he should be given the opportunity to reside in Australia with his wife and child and that it would be in the best interests of their child if they lived together in Australia. He also stated that Mrs Nguyen had previously applied to visit Mr Nguyen in the US, but this application had been rejected (T17 p199).
13. On 15 July 2004, the US government initiated proceedings to remove Mr Nguyen from the US on the ground of his criminal convictions (T p201).
14. On 6 October 2004, a delegate of the respondent decided to refuse Mr Nguyen’s subclass 100 spouse (permanent) visa on the grounds that he did not pass the character test because of his substantial criminal record and past and present criminal conduct and having exercised his discretion to refuse the grant of a visa to Mr Nguyen (T2 pp11-18). Mr Nguyen was notified of the decision, care of his migration agent, on 25 October 2004. On 24 November 2004, his migration agent lodged an application for a review of this decision by the tribunal (T p4).
15. At the hearing of this matter, the applicant was represented by Parris Kazacos, registered migration agent, Parris & Shah Migration Specialists, and the respondent was represented by Catherine Petre, solicitor, Clayton Utz, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), taken into evidence as Exhibit R1, together with the evidence tendered by the parties at the hearing. Mr Nguyen gave oral evidence by telephone from the United States and Mrs Nguyen gave oral evidence in person.
Relevant Law and Policy
16. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(6) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(6)(a). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides:
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));
…
”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.
17. Section 501(6)(c)(i) states:
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct
…
the person is not of good character; …
18. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
19. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Issue
20. In the present case, Mr Nguyen does not pass the character test because of his “substantial criminal record”, having been convicted on 8 December 1992 in Santa Clara, United States, of two counts of forge name on access card for which he received three years court probation on each charge and sentenced to 90 days weekend jail; on 24 June 1993 having been convicted in Santa Clara of attempted robbery in the second degree and being sentenced to three years imprisonment; and on 12 November 1998 of having been convicted, in San Jose in the United States, of false imprisonment and sentenced to two years formal probation with 30 days weekend work. The issue remaining, therefore, is whether the tribunal should exercise the discretion under s 501(1) not to refuse Mr Nguyen’s visa.
Evidence
21. At the hearing the applicant’s representative indicated that his client admitted that the visa applicant did not pass the character test in s 501 of the Migration Act and indicated that his argument would turn on the discretionary criteria in Direction No 21. He did not propose to call any witnesses, including the applicant and the visa applicant. The respondent, however, did wish to examine Mr and Mr Nguyen, and consequently they were called to give evidence, but as witnesses for the respondent.
22. The applicant, Mrs Thuc-Doan Dinh Nguyen is the visa applicant’s wife. She met him in person in February 2000 in California, having travelled there for the express purpose of meeting him. They had previously made each other’s acquaintance when he was introduced to her over the telephone from Vietnam, while she was visiting that country in 1999. After that introduction, they communicated by telephone for almost a year before she decided to visit him in California, although not necessarily with a view to matrimony.
23. He had made her aware from the start that in 1999 he had a criminal record including a conviction for robbery and for the false imprisonment of his ex-wife, but she said she was unaware that his record could cause problems if he sought to obtain a visa to come to Australia.
24. They were married in Sydney on 27 August 2001 when he was visiting Australia, but did not seek a spouse visa until 23 October 2003. She explained the delay by saying that the original plan was for him to come to Australia and apply for a visa when here. As he had experienced no problems in obtaining three tourist visas, they foresaw no difficulties about that, but when his fourth application for a tourist visa was refused in 2002 they realised that a spouse visa would be difficult to obtain.
25. Their daughter was born on 15 November 2003. Mr and Mrs Nguyen have not lived together since that time, nor has Mr Nguyen ever seen his daughter, except by web cam, but each month he sends his wife money and sometimes clothing for the baby. Currently Mrs Nguyen’s principal source of income is Commonwealth welfare payments.
26. Mrs Nguyen’s family is in Australia, except for one uncle and some cousins in Vietnam, to whom she says she is not close. She has visited Vietnam five times in all, two of those visits for the purpose of meeting with her husband. She took her daughter with her when she spent December 2003 and January 2004 in Vietnam. She has visited the United States to see Mr Nguyen three times, twice before the marriage and once on their honeymoon. She said that she stayed with Mr Nguyen’s mother, with whom she has developed a good relationship. Now, however, she cannot obtain a visa to enter the United States.
27. Mr Nguyen gave evidence by telephone. He discussed his criminal convictions essentially along the lines of his detailed letter in support of his visa application (T p114-118), starting with his sentence for second degree robbery in 1993, when he was aged 23. There were two earlier convictions, however, one for riding in a stolen car, for which he received probation. In his letter he explained that he did not know the car was stolen. In August 1992 he was sentenced to 90 days’ weekend jail, a $US540 fine and three years probation for forging a name on a driver’s licence, at a time when his own licence was suspended.
28. In relation to the 1993 robbery conviction, he said at the hearing that he had a friend whose girlfriend worked at a computer manufacturing company and that through her the friend obtained information that would enable them to carry out a breaking and entering and stealing of computer chips and memory devices. The visa applicant said that he played only a subordinate role and that his task to walk into the building after the others had obtained access to it and remove the computer components. The operation did not go according to plan, however, and his associates attacked the janitor, who it was expected would open the door, with a taser or stun gun and bound him. The applicant said he did not know that a member of the group was carrying a taser.
29. Next, he was involved in a brawl in 1986 or 1987 in Orlando, Florida which led to his being arrested and spending the weekend in the county jail, although he is not sure exactly how long he did spend incarcerated there. His only involvement in the fight, he wrote in his letter (T p155), was in restraining one of the two men involved, in an attempt to stop the fight.
30. His explanation for the false imprisonment conviction in 1998 accorded with the one he gave in his letter (T p116). He stressed that he had not touched either his ex-wife or her sister. It was the sister who telephoned the police, and when asked why she might have done that, he conceded that she might have been afraid because he was yelling at them.
31. He breached the parole he received for that offence in 1999, one of the conditions of which was to complete a year-long anger management course. Participants were allowed to miss only two of the weekly classes in a year, but in fact he missed three because of work commitments. The court allowed him to restart the course, which he duly completed, but he was also late on one occasion for a weekend work commitment. The judge gave him the option of serving ten days imprisonment (reduced to seven), which he accepted.
32. His wife confirmed that he told her about his criminal record even before she came to meet him in California the first time, but like her, he said he was unaware that it might give rise to visa problems if he wanted to join her in Australia. On the first three occasions when he visited Australia, he arranged for a travel agent to prepare the tourist visa application for him. On his arrival cards he answered truthfully the question about criminal convictions, and as a result was required to undergo a special admission process, but was allowed entry on each occasion. When making arrangements for his fourth visit, however, he prepared the application himself in order to save money, was truthful about his criminal conviction and was refused a visa. The agent had not asked him if he had any criminal convictions when preparing the earlier application.
33. After the events of 11 September 2001, the United States immigration authorities began a review of all non-citizens with criminal records, he said. Consequently he faces a hearing on 2 June 2005 that could result in his removal from the United States. His lawyer will be seeking dismissal of the application and will be claiming refugee status because his parents worked for the United States services in Vietnam during the war. If he is required to leave the United States and does not obtain an Australian visa, he would move to Vietnam. He spent about six to eight weeks there in 1989 to 1999, and stayed there for a further two month period to be with his wife in 2003. He did not mention having any difficulties in visiting Vietnam, even for those extended periods, and did not say that he could not live there for any other reason. Nor did his wife.
Consideration
34. As was stated above, there is no dispute, and I find accordingly, that Mr Nguyen does not pass the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more or has been sentenced to two or more terms of imprisonment where the total of those terms is two years or more. As stated above, he has been convicted of a number of offences for which he was sentenced to a term of imprisonment greater than 12 months.
35. The issue for the tribunal therefore is whether to exercise its discretion under s 501(1) to decide, nevertheless, not to refuse Mr Nguyen’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.
36. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community
37. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraphs (e) armed robbery (including robbery involving the use of imitation weapons), (f) assault or any other form of violence against persons, (h) kidnapping, (l) theft which causes disruption to individual, business and government, and (n) any other crimes involving violence or threat of violence which cause concern to the welfare and safety of the Australian community.
38. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
Protection of the Australian Community
39. The first factor to be considered under this heading is the seriousness and nature of the conduct involved. In this case, the visa applicant was convicted of a number of offences in the United States between 1987 and 1999 including robbery in the second degree and false imprisonment, offences which the Australian government view as very serious. Paragraph 2.6 of Direction No 21 makes it clear that robbery and any other form of violence or threatened violence against persons are to be treated as very serious. I note that the United States government has instigated proceedings to remove Mr Nguyen from that country because of his disregard for its laws.
40. Mr Kazacos submitted that none of his client’s offences involved any actual violence and resulted more from a tendency towards emotional over-reaction. They all occurred when he was younger, the most recent being almost a decade ago. But the forgery and robbery offences were not the result of emotional responses, and the forgery charge arose when he was 22 and no longer a juvenile. Mr Kazacos pointed out that his client has at all times been forthright with the Australian immigration authorities about his criminal history and submitted that the offences looked worse on paper than they did when they were fully explained. Even so, they add up to a significant criminal record.
41. The absence of any conviction in the past eight years suggests possible rehabilitation. Mr Kazacos said that he is fully employed and his wife reports that he has been working for the past year as a delivery truck driver, having worked for six months before that in the motor industry. Driving a delivery truck is honest and useful work, but Mr Nguyen’s oral and written expression suggest that he is endowed with above average intelligence, and his employment record (T p75) suggest that he has held some quite responsible positions in the computer, electronics and communications industries in the Santa Clara-San Jose region, a well known area for that kind of industry. Between January 1999 and November 2002, for example, he was information systems administrator with Innoware Broadband Inc., a telecommunications company. He obtained that position after his conviction on the false imprisonment charge, which suggests that his criminal record has not been an insuperable obstacle to his obtaining employment at a better than average level in an advanced industry. It is possible that the decline of his employment fortunes has resulted from a weakening in market conditions, but no explanation was offered by him or on his behalf. Given his admitted tendency to emotional over-reaction, one is led to wonder whether he has been involved in altercations with management that have led to unplanned changes of employment. At all events, in the absence of an explanation, one cannot have complete confidence that Mr Nguyen is a rehabilitated and reformed character.
42. The respondent contended that general deterrence (paragraph 2.11 of the Direction) was a factor in this case and that refusal of a visa would show other persons considering applying for Australian visas that they need to refrain from breaching the laws of their countries of origin or of residence. Mr Kazacos argued that deterrence was irrelevant in this case because his client had been unaware of the effect of a criminal record on the prospects of obtaining a visa. General deterrence, however, is concerned with the effect on persons other than the applicants or visa applicants in particular cases. In any event I have some difficulty in accepting that a man of Mr Nguyen’s intelligence and experience would have been ignorant of such a notorious fact, one which is just as true of the migration laws of the United States as those of Australia. General deterrence is not a conclusive factor in itself, but it does add some weight to the conclusion that the first primary discretionary factor weighs against the grant of the visa in this case.
43. Next, the tribunal is to consider the risk of recidivism. Paragraph 2.10 of Direction No 21 states that “a non-citizen with several convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour”. In this case, the visa applicant has engaged in serious criminal conduct in the United States for a period of over six years. He has admitted to being involved in illegal activities since the age of 15 (T p114).
Expectations of the Australian community
44. The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia. Where a person has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse a visa application. Visa refusal may be appropriate simply because of the nature of the character concerns or the offences such that the community would expect that the person would not be granted a visa. “Decision-makers should have due regard to the Government’s view in this respect” (Direction No 21 paragraph 2.12).
45. In her written statement of facts and contentions (Exhibit R2), the respondent submitted:
Mr Nguyen failed to obey US laws over a period of about 6 years and committed offences which involved violence or the threat of violence against other people. Through his criminal conduct, Mr Nguyen demonstrated his disrespect for US laws during his stay in that country and this evidences a risk that Mr Nguyen may engage in similar conduct if he is permitted to migrate to Australia.
46. On the applicant’s behalf it was argued that the community expectations did not weigh against granting a visa in this case because those expectations could safely be meet now that Mr Nguyen was reformed, that he was in a genuine and long-term marriage and had a child.
47. The removal proceedings currently pending in the United States against Mr Nguyen have a bearing on this point. At present Mr Nguyen has permanent residency in the United States. His wife could apply to join him there, bringing their daughter with her. If Mr Nguyen successfully resists the removal proceedings, the Australian community might reasonably take the view that, given his prior criminal history, the best solution from Australia’s viewpoint would be for the family to take up residence in California, where Mr Nguyen has lived for many years. On the other hand, if the United States orders his removal, it could also be reasonably argued that if the United States courts in California, which are necessarily more familiar with the visa applicant, his circumstances and his record, consider that he is unfit to remain in the United States, that is not a persuasive argument for giving him a spouse visa to enter Australia. Australian crime rates today are higher than those of the United States for all offences except murder (see P Saunders, K Tsomari, Poverty in Australia: Beyond the Rhetoric, Centre for Independent Studies, Sydney 2002, 79) and it might be thought inappropriate for the Minister to risk adding to Australia’s crime problems by taking a chance on someone with Mr Nguyen’s record. He failed to obey the laws of the United States for a period of about six years and committed, or was involved in, offences that included violence or the threat of violence against other people. The possibility that if he came under pressure in Australia he might again resort to crime cannot be ruled out.
The Best Interests of the Child
48. The third primary consideration is the best interests of the child. The tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”. The tribunal also notes paragraph 2.16 of Direction No 21 which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
49. In this case, Mr Nguyen has a daughter, Kady Doan Tram Thai Nguyen born 15 November 2003, and aged 18 months at the time of the hearing, whose interests must be considered. Kady was born in Australia and has never lived with her father, in the United States or in Australia. She has never seen her father, Mrs Nguyen having been refused entry into the United States, apparently because of her husband’s pending removal proceedings in that country. He sends his wife money and clothing for the baby each month. There was no evidence as to the magnitude of the support he is providing, but Mrs Nguyen’s principal source of income is welfare payments.
50. Direction No 21 declares that in general, a child’s best interests will be served if the child remains with its parents (paragraph 2.15). In this case, the child could be reunited with both her parents in California, if Mr Nguyen successfully resists the removal proceedings. At the age of 18 months Kady, although an Australian citizen, has no particular links with Australia and could readily adjust to life in California, where she would experience a life comparable to that which she would have in New South Wales.
51. If Mr Nguyen is unsuccessful in resisting the removal application in the United States, the family could also be reunited in Vietnam. Both parents have spent periods of several months in that country recently and neither has said that he or she would face any particular difficulties in living there. Kady herself spent about two months in Vietnam in December 2003 to January 2004, apparently without ill effects. The fact that Mrs Nguyen has made five visits to Vietnam for not inconsiderable periods suggests that her links with that country, whether familial or other, may be somewhat stronger than appears on the face of her evidence. Finally, Kady was born on 15 November 2003, and must have been conceived in 2003, at a time when both parents knew that Mr Nguyen had already been refused a tourist visa for Australia on character grounds. That was also a time, as Mr Nguyen partly indicated in his evidence, when immigration laws throughout the world were becoming stricter following the events of 11 September 2001. To have a child in those circumstances, without any assurance that the family would be able to live together in the country of their first choice, was imprudent to say the least.
52. For those reasons I do not think that this consideration weighs decisively in favour of granting a visa.
Other considerations
53. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary visa or permanent visa.
54. In this case, Mr Nguyen’s family, except for his wife and young daughter, including his mother all reside in the United States and would not be affected if his application to live in Australia were refused (T p59). Mrs Nguyen’s parents and her two siblings live in Australia and would not be affected by the refusal of the visa, if she were to choose to remain in Australia. If she were to move to California, they could visit her there, and indeed it is not uncommon today to find members of a particular family living in different countries. It is no longer regarded as the hardship that it once was. Her moving to Vietnam to be with her husband if he were removed from the United States might not from her viewpoint be an ideal outcome, but Mrs Nguyen does appear to have significant and current links with that country. There would be no obstacle to mutual visits.
55. The marriage between the applicant and the visa applicant is concededly genuine, even though the parties have only lived together for short periods. Nevertheless, Mrs Nguyen entered into it with full knowledge of the visa applicant’s criminal history, and indeed she had known about it for three years before the marriage. Both she and her future husband have begun their lives in the United States and Australia respectively as immigrants, and I find it difficult to believe that neither of them was aware that persons with criminal records, especially significant ones such as Mr Nguyen’s, face serious problems obtaining visas to enter other countries.
56. I conclude that in this case the best interests of the child and the other considerations do not outweigh the primary considerations of community protection and community expectations. I affirm the decision under review.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate of Hearing 12 May 2005
Date of Decision 20 May 2005Representative for the Applicant Mr P Kazacoz, registered Migration Agent
Representative for the Respondent Ms C Petre, Solicitor, Clayton Utz solicitors
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