Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2024] AATA 889

Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 889 (30 April 2024)

Division:GENERAL DIVISION

File Number(s):      2021/9188

Re:Van Chien Nguyen

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:30 April 2024

Place:Sydney

The reviewable decision dated 24 November 2021 is set aside and the mandatory cancellation of the Applicant’s visa is revoked.

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

Mr S Evans, Member

CATCHWORDS

MIGRATION – Applicant citizen of Vietnam - visa mandatorily cancelled pursuant to section 501(3A) of the Migration Act 1958 (Cth) – substantial criminal record – offences relating to the cultivation of illicit drugs - sentenced to a term of imprisonment of 12 months or more - review of decision to refuse to revoke mandatory cancellation under section 501CA(4) - applicant does not pass the character test – whether another reason decision should be revoked - decision under review set aside

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594.

SECONDARY MATERIALS

Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Mr S Evans, Member

30 April 2024

1. Van Chien Nguyen (the Applicant), is a 32-year-old citizen of Vietnam who first arrived in Australia on 30 October 2009 on a Student (Class TU) (subclass 573) visa. The Applicant was subsequently granted a Partner (Class BS) (subclass 801) visa (the visa).[1]

   [1] Respondent’s Statement of Facts, Issues and Contentions, 12 October 2023, [4].

2. On 7 October 2020, the Applicant was convicted in the Paramatta District Court for Knowingly take part-cultivate >= comm qty-cannabis-SI and sentenced to a term of 28 months imprisonment.[2]

   [2] Tribunal Book (TB), R2, p.363-364.

3. On 11 July 2019, the Applicant’s visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act). The Applicant made representations requesting revocation of the cancellation decision on 13 August 2019.[3] On 25 January 2021, the department invited the Applicant to comment on further information consisting of his National Criminal History Check and recent additional charges.[4]

   [3] TB, R1, p.11-13, p.66-90.

   [4] TB, R1, p.91-94; p.275-283.

4. On 24 November 2021, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) found that the discretion under subsection 501CA(4) to revoke the cancellation under subsection 501(3) was not enlivened.[5]

   [5] TB, R1, p.11-13.

   LAW AND POLICY

5. Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

6. Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6)(a) and 501(7)(c).

7. Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.

8. The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act:

   (4) The Minister may revoke the original decision if:

   (a) the person makes representations in accordance with the invitation; and

   (b) the Minister is satisfied:

   (i) that the person passes the character test (as defined by section 501); or

   (ii) that there is another reason why the original decision should be revoked.

9. Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

10. The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99).

11. Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations. However, other considerations should not be considered ‘secondary’ or of inherently less importance than primary considerations, and in certain circumstances one or more other considerations may outweigh primary considerations.[6]

    [6] Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594.

12. The primary considerations in the Direction are:

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

    (2)  Family violence committed by the non-citizen;

    (3)  The strength, nature and duration of ties of the non-citizen to Australia;

    (4)  The best interests of minor children in Australia affected by the decision; and

    (5)  The expectations of the Australian community.

13. The other considerations set out in Direction 99 which must be taken into account where relevant include but are not limited to:

    a)    The legal consequences of the decision;

    b) The extent of impediments if removed;

    c) The impact on victims; and

    d) The impact on Australian business interests.

    ISSUE

14. As it is accepted by both parties that the Applicant does not pass the character test as defined in section 501(7)(c) of the Act, the issue for determination is whether there is ‘another reason’ why the decision the cancel the Applicant’s visa should be revoked pursuant to section 501(CA)(4) of the Act.[7]

    EVIDENCE

    [7] TB, R1, p.17-27.

    The Applicant’s criminal history

15. The Applicant’s criminal history is set out in a national criminal history check dated 2 December 2020.[8]

    [8] TB, R1, p.30-31.

    The 2013 offending 

16. On 12 December 2018, the Applicant was convicted in the Campbelltown District Court of Cultivate prohibited plant>=large commercial qty- cannabis-SI. The conviction arose from a search warrant executed by police in 2013 on premises which had been converted into a sophisticated hydroponic setup. The Applicant’s fingerprints were found on lampshades and light globes seized from the property. An arrest warrant was issued and executed on the Applicant several years later, after he was stopped by police for an unrelated matter. The Applicant was sentenced to an 18-months intensive corrections order (ICO).[9]

    [9] TB, R1, p.28-31; p.32-42; Respondent’s Statement of facts, Issues and Contentions, 12 October 2013, [11].

    The 2019 offending

17. On 7 October 2020, the Applicant was convicted of Knowingly take part-cultivate>=comm qty–cannabis-SI in the Paramatta District Court and sentenced to 28 months imprisonment. The conviction followed the Applicant’s arrest on 25 March 2019 after leaving a residential property which was found to have been used for indoor cultivation of cannabis. He pleaded guilty on the day of the trial.[10]

    [10] TB, R1, p.28-31; p.43-56.

    Driving offences

18. The Applicant has two convictions for high range drink-driving and a conviction for negligent driving.[11] Notably, a police facts sheet records that on 13 January 2017 the Applicant lost control of his vehicle and collided with five stationary vehicles. He recorded a blood alcohol reading of 0.159 grams of alcohol in 210 litres of breath.[12]

    [11] TB, R1, p.28-31; R2, p.159-163.

    [12] TB, R2, p.224-227.

    Evidence of the Applicant

19. The Applicant arrived in Australia when he was 18 years-old and resided with his aunt, Thi Hao Nguyen, and cousin Quang Dinh.[13] He studied English for a year before enrolling in a diploma in Information Technology which he did not complete.[14]

    [13] TB, R1, p.105-108.

    [14] TB, R1, p.35.

20. The Applicant married his first wife in October 2012.[15] He began to meet her friends and started socialising with a new ‘friend group’. Around this time, he began drinking and occasionally gambling. He developed a gambling addiction which led to his involvement in illegal activities to help repay his gambling debts. His marriage began to break down, he became estranged from his first wife, and they separated in 2017.[16] 

    [15] TB, R1, p.36.

    [16] TB, R2, p.457.

21. The Applicant writes that at the time of the 2013 offending, he was ‘introduced into bad company’ and agreed to assist in the set-up of the cultivation of cannabis so that he could earn quick money to repay his gambling debts.[17]

    [17] Applicant’s Statement of Facts, Issues and Contentions, 28 January 2022, [27].

22. It was the Applicant’s evidence that it was a one-off job and that his role in the offending was limited to assisting by carrying equipment inside the premises for the organisers. The payment he received was not substantial, but he desperately needed money and his significant debts had impaired his thinking.

23. The Applicant stated that the time he has spent in prison and immigration detention has enabled him to ‘educate himself’ and he knows that assisting in the setup of the cannabis cultivation was ‘extremely wrong’. He understands that cannabis is ‘particularly addictive and can destroy lives and tear families apart’. He concedes having turned a blind eye to these realities for his own financial gain.

24. When he was sentenced on 12 December 2018 for the 2013 offending, the Applicant believed that he ‘no longer [had] a gambling problem’.[18] However, he submitted that within a month of sentencing, his addiction returned, and he began to make poor decisions. He was approached to ‘do a job’, which led to the second offence, which the Applicant acknowledges was substantially the same as the 2013 offence.

    [18] TB, R1, p.36.

25. The Applicant explained that he reoffended shortly after being sentenced for the 2013 offending because he had resumed gambling. He had obtained a debt and needed money to repay the debt. He stated he lacked maturity at that time and returned to criminal activity because he was focussed on repaying his gambling debts and believed he had no other options. When he committed the offences, he did not know the consequences would be so serious.

26. In June 2018 the Applicant began a relationship with Thi Duc Chu. They married on 21 March 2019 and their daughter, K, was born in August 2019.[19]

    [19] Applicant’s Remittal Bundle p.34; p.81-82.

27. When he was arrested in March 2019, Ms Chu was pregnant with K. Ms Chu was unaware of the Applicant’s debts because he had not told her about them. The Applicant did not wish to burden her with his problems and was confident he could repay his debts without his wife’s assistance.

28. The Applicant is confident he has strong employment prospects in Australia. His employment history includes casual work as a chicken boner and labouring jobs including shop fitter, tiler, and construction worker. He also worked while in prison. Should he return to the community, the Applicant plans to secure stable, legal employment to support his family.

29. The Applicant claims he has matured greatly since his arrest in March 2019. He values life more and does not want to be away from his wife and child. He and Ms Chu are young, and he is confident they can restart their lives. They have maintained regular contact since he was arrested, and he wants to make up for not having been able to support his wife and daughter while in prison and detention.

30. Regarding his gambling, the Applicant is confident he has overcome his addiction. He has not gambled in prison or detention, despite having had the opportunity to do so. Having a daughter has motivated him to be more responsible. He has researched gambling addiction and plans to attend regular, ongoing counselling should he return to the community. He acknowledges his reoffending so soon after being sentenced makes his claims to have overcome his gambling addiction appear less credible, but he contends confidence is warranted because he has paid a very high price for the 2019 offending. He was imprisoned, his visa was cancelled, and he has been separated from his wife and child for 5 years. He has given much thought to what he can do to prevent reoffending and now recognises the severity of his gambling addiction.

31. The Applicant confirmed that Ms Chu is a citizen of Vietnam, and it would be possible for them to reside together with their daughter in Vietnam. He is aware that Ms Chu does not have a valid visa to remain in Australia and he plans to sponsor her if his visa is reinstated. He fears that if his visa remains cancelled his daughter may not be able to remain in Australia and become an Australian citizen. Should either he or Ms Chu be required to leave Australia, they plan to return to Vietnam with their daughter so they can remain together as a family.

    Evidence of Thi Duc Chu, the Applicant’s wife

32. Thi Duc Chu has provided a statement and gave evidence at the hearing. In her statement, Ms Chu writes that she and the Applicant have been apart since April 2019, and she has raised their daughter on her own since her birth. Ms Chu fears that without a father figure in her life, K has grown up ‘sad and disadvantaged’. Ms Chu writes that she has struggled to fulfill both parental roles in the Applicant’s absence.[20]  

    [20] TB, R2, p.477.

33. Regarding his offending, Ms Chu writes that the Applicant was a ‘loving, caring and thoughtful husband’ and she was ‘completely shocked’ when she found out about his crimes. She considers the Applicant’s criminal offending to be ‘completely out of his character’. Ms Chu believes that having a family and the loss he experienced being separated from his daughter are significant protective factors which will ensure he does not reoffend.[21]

    [21] TB, R2, p.477

34. In giving evidence, Ms Chu confirmed she is a citizen of Vietnam and does not currently hold a valid visa to remain in Australia. She accepts there is a possibility that she may be required to return to Vietnam. Should she return to Vietnam, Ms Chu intends that her daughter will accompany her. However, she fears her daughter would be significantly disadvantaged should the family return to Vietnam as her friends and all she knows is in Australia. K speaks Vietnamese at home and English at school.

35. Ms Chu said she and the Applicant had discussed the options they may have depending on their visa status. Irrespective of the outcome, Ms Chu, the Applicant, and their daughter will remain together as a family. Ms Chu said that ideally, the Applicant will have his visa reinstated and she and her daughter would also be able to remain in Australia.

    Evidence of Thi Hao Nguyen, the Applicant’s aunt

36. Thi Hao Nguyen provided a statement and gave oral evidence at the hearing. She said that when the Applicant arrived in Australia, she was busy working and was unable to supervise him enough. Ms Nguyen recalls the Applicant struggled with financial problems between 2014 and 2018 after he became ‘mixed up with the wrong people’ when he was ‘still a young and inexperienced person.’ She believes he became ‘tempted by the fast life of crime and money’.[22]

    [22] TB R2, p.478-479.

37. Ms Nguyen and her husband are receiving pensions, own their own home and have a spare room which they are prepared to offer the Applicant. They are also prepared to provide practical support to the Applicant, his wife and their daughter should they need it. The Applicant has promised Ms Nguyen that he will not gamble again, and Ms Nguyen is prepared to provide him with cash if he needs it to cover essential expenses. Ms Nguyen expressed confidence that he would maintain his commitment not to gamble because he now has a wife and child.

38. Ms Nguyen believes the Applicant has become a good person and she expressed confidence in his ability to secure employment quickly given his previous work experience. She said there is a strong demand for his skills, and she could refer him to a carwash for work if required.  

39. She gave evidence that the Applicant’s father would not be able to support the Applicant in Vietnam because of his age and inability to provide financial support. 

    Evidence of Quong Dinh, the Applicant’s cousin

40. Quong Dinh has provided a written statement and gave evidence at the hearing.[23]

    [23] TB, R2, p.480-481.

41. Mr Dinh said that he and his mother, Ms Nguyen, are the only people in Australia who are close to the Applicant. He and his family are prepared to provide the Applicant with accommodation, help and guidance to support him should he return to the community. Mr Dinh is also prepared to support the Applicant financially if required. He is aware of the Applicant’s previous experience with problem gambling. 

42. Mr Dinh said the Applicant has changed significantly since having a family. He is confident in his capacity and intention to become a better person, secure employment, rehabilitate and build a better life for he and his family.

    PRIMARY CONSIDERATION 1 – Protection of the Australian community from criminal or other serious conduct

43. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 99 requires decision-makers to have regard to:

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

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

    The nature and seriousness of the Applicant’s conduct to date

44. In considering the nature and seriousness of the Applicant’s conduct I am required to have regard to the factors set out in paragraph 8.1.1(1) of the Direction.

45. In sentencing for the 2013 offending Judge English described the growing of cannabis by elaborate indoor hydroponic cultivation as a ‘serious crime’, but observed that the Applicant’s role and level of criminality was more important in assessing the seriousness of the offending than necessarily determining the sentence purely in relation to the quantity of plants grown. Her Honour found that the Applicant played ‘a very limited role’ and ‘his role was to assist in the setup of the cultivation and no more’.[24]

    [24] TB, R1, p.37-38.

46. In sentencing the Applicant for the 2019 offending, Judge Hanley accepted that the Applicant’s offending was ‘below the midrange’ of seriousness.[25]

    [25] TB, R1, p.47.

47. In considering the seriousness of the Applicant’s offending, I am mindful that the 2019 offending occurred while the Applicant was on conditional liberty. As noted by Judge Hanley in his sentencing remarks, an Intensive Corrections Order had been imposed on the Applicant ‘approximately three months previously’ for his involvement ‘in a similar criminal operation’.[26]

    [26] TB, R1, p.48.

48. The Direction requires I have regard to the frequency and cumulative effect of the Applicant’s offending. The Applicant submits that the 2013 and 2019 offences were attributable to isolated periods in his life during which he became addicted to gambling and associated with the wrong people.[27]

    [27] Applicant’s Statement of Facts, Issues and Contentions 14 September 2023, [54].

49. I do not accept the Applicant’s submission there is no continuing pattern or cumulative effect of the offending. As Judge Hanley observed, the nature of the 2013 and 2019 offending was similar and arose out of similar circumstances.[28] However, I consider the 2019 offending is more serious given he was on conditional liberty at the time, and the offending occurred within months of being sentenced for the 2013 offending. The seriousness of the offending is reflected in the sentence imposed upon him, and the 28-month term of imprisonment he received for the 2019 offending reflects the increasing seriousness of his offending.[29]  

    [28] TB, R1, p.48-49.

    [29] TB, R1, p.56.

1. Having regard to the Direction, I find that the Applicant’s offending to date is serious.

   The risk to the Australian community

2. Subparagraph 8.1.2(1) of Direction 99 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. Subparagraph 8.1.2(2) provides that in assessing the risk posed by a non-citizen to the Australian community, I should consider, cumulatively: 

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

   (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending. 

3. I have detailed the nature of the Applicant’s offending conduct to date. The Applicant submits that while cannabis use can and does result in harm, cannabis cultivation has now been legalised for medical and scientific purposes and cannabis possession has been legalised or decriminalised for either recreational or medical use in all states.

4. In considering the nature of future harm to the community, I am mindful of Judge English’s sentencing remarks regarding the 2013 offending in which she said that ‘cannabis grown hydroponically is particularly addictive and can destroy lives and minds of those who are sadly addicted.’ I also take into account that the 2019 offending included offences related to an illegal electrical bypass which was described by the court as ‘extremely dangerous’.[30]

   [30] TB, R1, p.38, p.45.

5. If the Applicant were to engage in further similar offending, he poses a serious risk of harm to members of the Australian community through his involvement in cannabis cultivation and to other road users should he commit further high range drink driving offences.

   The likelihood of further criminal or other serious conduct 

6. The Applicant recognises his offending has caused significant harm to the community for which he says he is remorseful. He contends that his past conduct was driven by addiction to gambling and association with the wrong people. In contrast, he is now married with an infant daughter and removed from his past associations.

7. In sentencing the Applicant on 12 December 2018 Judge English stated that:

   Unfortunately [the Applicant] did not impress me as someone who was genuinely remorseful. True it is he pleaded guilty and did so at the earliest possible opportunity and in that respect his plea demonstrates contrition. However he demonstrated no insight into the impact of cannabis upon the community and nor did he appear to be appreciate the need to comply with court orders, particularly with regard to completing a community service order or attending Community Corrections for the purpose of completing the presentence report required for these proceedings.

   I found his attitude did not bode well for his rehabilitation and nor did it instil me with confidence that he would not reoffend. Matters may now have subsequently changed as a result of the delay.[31]

   [31] TB, R1, p.37.

8. Judge Hanley made similar observations when sentencing the Applicant on 7 October 2020, remarking that the Applicant had shown little remorse and sought to minimise the extent of his offending.[32]

   [32] TB, R1, p.49-50.

9. The Applicant maintains he was and remains remorseful for his offending. He attributes the observations to the contrary to his reluctance to show emotion and the difficulty he experiences when expressing his feelings. He believes these factors cause him to speak in a manner that ‘may come off the wrong way to others’.

10. The Applicant claims that when he was sentenced on 12 December 2018, he was young and that Judge English’s sentencing remarks were not interpreted in full, and he was simply told he was not going to gaol. However, he also confirmed during his evidence in chief that he had been told by his legal representative the offending was serious.

11. An LSI-R actuarial risk/needs assessment of the Applicant dated 26 July 2016 - conducted as part of a pre-sentence report for his drive with high range PCA court appearance on 31 July 2017 - found he was a ‘low/medium’ risk of reoffending.[33] A pre-sentence report prepared on 14 March 2018 also assessed the Applicant as a low medium risk of reoffending using the LSI-R tool.[34]

    [33] TB, R2, p.153.

    [34] TB, R2, p.194.

12. The Applicant proceeded to reoffend after both reports. I note in particular that he committed further, very similar offences shortly after the court appearance for which the second report was prepared. Consequently, I afford little weight to these assessments when considering the risk he currently poses to the community.  

13. The Applicant has undertaken some rehabilitation to address his gambling compulsion having completed courses to understand addictions and drug and alcohol abuse. The courses identified in his statement include stress management, anger management, drug and alcohol abuse, lifetime wellness, creative thinking, understanding addiction and improving concentration.[35] The drug and alcohol course required 7 contact hours was completed by May 2023.[36] 

    [35] Applicant’s Remittal Bundle, p.120.

    [36] Applicant’s Remittal Bundle, p.129.

14. It is apparent that the rehabilitation the Applicant has undertaken was completed relatively recently, with most certificates being issued in mid to late 2023. The Applicant maintains he knew he needed help while in prison and tried to participate in counselling and programs that would assist with his rehabilitation. However, many programs were disrupted or cancelled owing to the pandemic. I accept that the Applicant had limited opportunity to participate in rehabilitation while in prison, but I do not consider this entirely accounts for the absence of earlier rehabilitation efforts. Nonetheless, I am satisfied that he has obtained some, albeit limited, insight into his offending which will guard against the re-emergence of his gambling addiction.

15. The Applicant submits he has not gambled for 5 years. While encouraging, he has had limited means with which to gamble during this time and he has yet to demonstrate he is able to manage his addiction in the community.

16. Nonetheless, I accept the Applicant has been chastened by the significant sentence he received, being imprisoned for the first time, and having his visa cancelled. His conviction has jeopardized he and his family’s future in Australia and denied him the opportunity to be with his wife and infant daughter. I accept that he genuinely intends not to reoffend and, in my view, the evidence supports there being a medium to low risk the Applicant may do so.

    Protection of the Australian community – conclusion

17. Taking into account the nature of the Applicant’s offending, the risk of his reoffending and risk that further similar offending poses to the Australian community, this primary consideration weighs strongly in favour of not revoking the mandatory cancellation of the Applicant’s visa. 

    PRIMARY CONSIDERATION 2 – Family violence committed by the non-citizen

18. There is no evidence that the Applicant has engaged in conduct that constitutes ‘family violence’, therefore, this consideration is not given any weight in favour or against revocation. 

    PRIMARY CONSIDERATION 3 – The strength, nature and duration of ties to Australia

19. I am required to consider the impact of the decision on the Applicant’s immediate family members in Australia as well as the strength, duration and nature of any family or social links with Australian citizens, permanent residents, and people who have a right to remain in Australia indefinitely. Subparagraph 8.3(4) provides that considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years.

20. The Applicant’s family in Australia include his wife, daughter, aunt and 4 cousins.[37] I accept the Applicant’s submission that non-revocation would have considerable emotional, practical, and financial consequences for them. Ms Nguyen and Mr Dinh have expressed a strong desire to assist the Applicant in rebuilding his life. His removal from Australia would be emotionally difficult for them both.

    [37] Applicant’s Statement of Facts, Issues and Contentions 14 September 2023, [70]; TB, R1, p.85.

21. Paragraph 5.2(5) of direction 99 provides that individuals who have lived in the Australian community for most of their life, or who have lived in the Australian community from a very young age would be afforded a higher level of tolerance. The Applicant arrived in Australia age 18 and has been resident in Australia for his entire adult life, but his formative years were spent in Vietnam.

22. The Applicant’s wife and daughter reside in Australia. It is not in dispute that neither currently has the right to remain in the community. The Direction specifically requires decision makers to consider the impact of the decision on ‘people who have a right to remain in Australia indefinitely,’ which the Applicant’s wife and daughter currently do not.

23. More weight should be given to the time a non-citizen has resided in the community and contributed positively to the community. I note the Applicant has contributed positively to the Australian community through paid employment and to a limited degree through his studies. The weight afforded to this consideration is reduced owing to his being imprisoned and then held in immigration detention since March 2019. 

24. Overall, this consideration is afforded medium weight in favour of revoking the cancellation decision.

    PRIMARY CONSIDERATION 4 – Best interests of minor children affected by the decision

25. Direction 99 requires the Tribunal to make a determination about whether refusal to revoke the cancellation of the Applicant’s visa is in the best interests of any minor children in Australia affected by the decision. The Direction at subparagraph 8.4(4) sets out several factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known views of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.

26. The Applicant’s daughter was born while the Applicant was in prison.[38] The Applicant has established and maintained a relationship with his daughter who has visited him in prison and detention. He has also maintained contact by electronic means and regular phone contact. The Applicant fears that if the cancellation decision is not revoked, his daughter will be without a father unless she travels with him to Vietnam.

    [38] Applicant’s Remittal Bundle, p.34.

27. The Respondent accepts that it is in K’s best interests that the cancellation is revoked. However, it is submitted that this factor should be given limited weight as both K and Ms Chu do not hold a valid visa and are unlawful non-citizens who are liable to be removed from Australia. Even if he were to have his visa reinstated, the Respondent submits it is possible that the Applicant and his daughter would accompany Ms Chu should she be returned to Vietnam.

28. The Applicant submits that revocation of the cancellation decision would be in the best interests of his daughter because she would then be able to remain in Australia. He considers this to be particularly important as K has not resided in Vietnam. Everyone she knows and everything she is familiar with is in Australia. Relocating K to Vietnam would separate her from her extended family in Australia and the Applicant argues she would have a lower standard of living in that country.

29. I am satisfied that it is in the best interests of the Applicant’s daughter that the cancellation is revoked. Revocation would be less disruptive for K and ensure that she is able to be with her father irrespective of whether Ms Chu remains in Australia or returns to Vietnam. While there is limited evidence of the Applicant’s involvement in her life to date, I accept he plans to play a positive parental role for K in the future. I also accept Ms Chu’s evidence that she has found it difficult to raise K without the Applicant. Revocation would allow the Applicant to fulfill his parental responsibilities immediately.   

30. Overall, this consideration weighs heavily in favour of revoking the cancellation decision.

    PRIMARY CONSIDERATION 5 - Expectations of the Australian community

31. Paragraph 8.5 of Direction 99 requires me to consider the expectations of the Australian community. Subparagraph 8.5(1) relevantly states: 

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

32. In FYBR v Minister for Home Affairs (FYBR) the Full Federal Court, decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration.[39] That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.5 of Direction 99.

    [39] FYBR v Minister for Home Affairs [2019] FCAFC 185.

33. The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. I accept that the Applicant’s criminal conduct is inconsistent with the values of the Australian community and the Australian community as a norm expects his visa to be cancelled.

34. Having regard to the provisions of Direction 99 and the Applicant’s criminal offending, I find that the community’s expectations weigh in favour of not revoking the cancellation of the Applicant’s visa.

    OTHER RELEVANT CONSIDERATIONS

    Other consideration B - Extent of impediments if removed

35. I am required to consider the extent of any impediments the Applicant may face if removed from Australia in establishing himself, and maintaining basic living standards in Vietnam, in the context of what is generally available to other citizens of that country.

36. The Applicant has asthma and fears the pollution in Vietnam would exacerbate the condition. He said that when he returned to Vietnam for a holiday, he suffered from asthma nearly half the time he was there. While some areas of Vietnam have less air pollution, the Applicant stated it will be more difficult to secure employment in these places and they are unlikely to be suitable for Ms Chu and their daughter.  

37. Should he return to Vietnam, the Applicant would not be able to rely on financial support from his family who are struggling financially. He submitted that Vietnam will have changed significantly since he left the country in 2009. He claims some of the manual labouring employment he has done in Australia would not be available to him in Vietnam.

38. The Applicant would be expected to undergo a period of readjustment should he return to Vietnam. It is unlikely he would have the level of family support available to him in Vietnam that he has in Australia, and he would initially be expected to face some obstacles and hardship when re-establishing himself. However, I do not consider they would be insurmountable or that he would not be able to maintain a basic living standard.

39. Regarding his asthma, the Applicant can expect to have access to the same level of medical support available to other citizens of Vietnam. 

40. On balance, this consideration weighs in favour of revoking the cancellation of the Applicant’s visa.

    CONCLUSION

41. Having considered the specific circumstances relating to the Applicant I am required to weigh-up the considerations to determine whether there is another reason to revoke the cancellation decision. 

42. The primary consideration of the protection of the Australian community weighs in favour of not revoking the cancellation decision and is afforded medium weight. The support the Applicant can expect from his family in Australia, his responsibilities towards his wife and daughter, and having served a significant term of imprisonment are considerable protective factors which reduce the weight afforded to this consideration. The expectations of the Australian community also weigh in favour of not revoking the cancellation of the Applicant’s visa.

43. The Applicant’s ties to the Australian community weigh in favour of revocation, but are afforded less weight owing to his limited contribution to the community prior to his imprisonment and Ms Chu not holding a valid visa.

44. The best interests of the Applicant’s daughter are served by being with her father. As K is now nearly five years of age and Australia is the only place she knows, I consider it is in her best interests that she remains in Australia. I afford considerable weight to this consideration. 

45. The impediments the Applicant may face in Vietnam weigh in favour of revocation and are afforded moderate weight.

46. Overall, I am satisfied there is another reason the revoke the cancellation decision and the decision under review will be set aside and substituted with a decision that the cancellation decision is revoked.

    DECISION

47. The reviewable decision dated 24 November 2021 is set aside and the mandatory cancellation of the Applicant’s visa is revoked.

I certify that the preceding 96 (ninety - six) paragraphs are a true copy of the reasons for the decision herein of Member S. Evans.

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

Associate

Dated: 30 April 2024

Date(s) of hearing:	31 January 2024 and 6 February 2024
Counsel for the Applicant:	R. Chia, Counsel
Solicitors for the Applicant:	J. Quach, J.L.E Lawyers
Solicitors for the Respondent:	J. Fyfe, MinterEllison