Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 1819
•26 June 2023
Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1819 (26 June 2023)
Division:GENERAL DIVISION
File Number: 2021/9655
Re:Thi Tuyet Anh Nguyen
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:26 June 2023
Place:Perth
The Reviewable Decision, being the decision of a delegate of the Respondent dated 23 November 2021, is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
.............[Sgd]...................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – one offence involving money laundering – Applicant is a 43 year old citizen of Vietnam who arrived in Australia as a 36 year old adult – Direction No 99 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed to Vietnam – Reviewable Decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42A(4)
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(6B), 501, 501(3A) , 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
CASES
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Nguyen [2022] FCAFC 200
Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1034
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
TJQM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 54
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (23 January 2023) paras 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 6, 7, 8, 8(1), 8(2), 8(3), 8(4), 8(5), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(1), 8.3(2), 8.3(3), 8.3(4), 8.4, 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.3(4)(d), 8.4(4)(e), 8.4(4)(f), 8.4(4)(g), 8.4(4)(h), 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 8.5(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.1(1), 9.1(2), 9.1(3), 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4(1)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
26 June 2023
BACKGROUND
The Applicant is a 43-year-old woman who was born in Vietnam. She came to Australia in January 2016, approximately a week before her 36th birthday (R1/121).
On 23 December 2020, the Applicant was sentenced in the District Court of Western Australia to three years and 10 months imprisonment for, “brought into, or whilst in West Australia received, possessed, concealed, disposed of or dealt with any money or property” (Money Laundering offence) (R1/25).
On 9 February 2021, the Applicant’s Class BS Subclass 801 Partner visa (Visa) was mandatorily cancelled (Cancellation Decision) under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that she had a substantial criminal record and was serving a full-time custodial sentence of imprisonment (R1/111).
The letter advising the Applicant of the Cancellation Decision advised that she could make representations to seek revocation of the Cancellation Decision. The Applicant sought revocation of the Cancellation Decision on 1 April 2021 (R1/15). She submitted a revocation request form, a personal circumstances form, and evidence in support (R1/50-110).
However, on 23 November 2021, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (R1/12). This is the Reviewable Decision currently before me.
The Reviewable Decision was sent to the Applicant’s then representative on the same day. It was not until 13 December 2021 that the Applicant lodged an application seeking a review of the Reviewable Decision in the General Division of this Tribunal (R1/3-8). This meant that her application was outside of the nine-day period prescribed by s 500(6B) of the Migration Act.
On 16 March 2022, a differently constituted Tribunal dismissed the Applicant’s application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) on the basis that the Tribunal lacked jurisdiction to review the Reviewable Decision (R1/204-223).
The Applicant was successful in an appeal to the Federal Court, with Colvin J finding that she was not outside of this prescribed period for lodging her application with the Tribunal because she had not been properly served. Colvin J ordered that the Tribunal’s decision be quashed, and the matter be remitted to the Tribunal for the determination of the application for review lodged on 13 December 2021 (Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1034).
The Full Federal Court subsequently dismissed an appeal by the Minister (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Nguyen [2022] FCAFC 200).
Accordingly, I heard this application on 3 and 4 May 2023. This decision and reasons constitute my determination of the Applicant’s application for review lodged on 13 December 2021.
ISSUES
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if she does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
At the hearing of this application the Applicant was represented by Ms J Edis of Putt Legal. The Respondent was represented by Ms D Jones-Bolla of Sparke Helmore Lawyers. The Applicant was also assisted by an interpreter in the Vietnamese language.
The Applicant and her husband, Kevin Huynh, gave evidence on the first day of the hearing in person. The Applicant’s 19-year-old daughter, J, gave evidence on the first day of the hearing by telephone.
I heard closing submissions on the second day of the hearing.
I admitted the following documents into evidence at the hearing:
(a)Applicant's bundle of documents, labelled A1-A49, comprising pages 1-184 (Exhibit A1);
(b)Section 501 - AS Documents, labelled AS1-AS4, comprising pages 1-18 (Exhibit A2);
(c)Bundle of Documents (Remittal Bundle), labelled 1-56, comprising pages 1-254 (Exhibit R1); and
(d)Summons Bundle, labelled SB1-SB4, comprising pages 1-448 (Exhibit R2).
The Applicant lodged a Statement of Facts, Issues and Contentions (SFIC) dated 10 March 2023 and the Respondent lodged a SFIC dated 3 April 2023 prior to the hearing.
LEGISLATIVE FRAMEWORK
Migration Act
Subsection 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
i. paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
ii. paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Subsection 501(6)(a) of the Migration Act provides that:
(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
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
i. a written notice that sets out the original decision; and
ii. particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
(Original emphasis.)
Direction No 99
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(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.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA made on 8 March 2021 (Direction No 90).
Paragraph 5.1 of Direction No 99 sets out “[o]bjectives”, with paragraphs 5.1(3) and (4) being relevant to the current application:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction No 99 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 99, when making a decision the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 99) must consider the primary considerations listed in paragraph 8 of Direction No 99, and the other considerations listed in paragraph 9 where relevant (see para 6 of Direction No 99).
Specifically, paragraph 8 of Direction No 99 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9 of Direction No 99 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
The Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act because she has a “substantial criminal record” as defined by s 501(7) of the Migration Act, having been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act). This is due to the Money Laundering offence for which she was sentenced to a term of three years and 10 months’ imprisonment on 23 December 2020.
As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 99)
Paragraph 8.1(1) of Direction No 99 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No 99 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 99)
Paragraph 8.1.1(1) of Direction No 99 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i. violent and/or sexual crimes;
ii. crimes of a violent nature against women or children, regardless of the sentence imposed;
iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii. crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant only has one criminal conviction for the Money Laundering Offence. The Applicant and her family were living in Sydney, but the offending, in which the Applicant involved her husband, Mr Huynh, took place in Perth over a three-day period from 17 January to 21 January 2020.
According to the sentencing Judge, the Applicant was under “significant financial pressure” at the time and was looking for further job opportunities in the Vietnamese community in Sydney. She returned to Vietnam to visit family and told a friend she was looking for work. The friend put her into contact with Mr A. The Applicant had never met Mr A in person but communicated with him over an encrypted communications service called Viber. Mr A put the Applicant in contact with a person who used the initials EV. The Applicant believed EV worked for Mr A. The Applicant never met EV. The sentencing Judge explained that in the Applicant’s communications with EV (A1/37-38):
You were told you could undertake a job which would require you to make cash deposits in Perth. From what you were told, you are expected to deposit $500,000 in total in multiple cash deposits. You were to be paid $2,500 plus expenses on completion of the job. You were not told where or how to receive the cash in Perth.
You then persuaded your husband and co-offender, Mr Huynh, to travel to Perth on the basis you were coming for a holiday, flying into Perth on 17 January. After arriving in Perth you told Mr Huynh that you needed to see someone in Perth. When he asked you who and what it was about, you said it was to collect cash to deposit.
Once in Perth you are directed to meet person in a car park to receive the cash. You were concerned about the arrangements to take delivery of cash in such a public area and you informed EV (?) of those concerns in text or Viber messages. You said that you wouldn’t take delivery that way and he wanted to cash brought to your hotel.
However, ultimately, you agreed to do what you were directed and collected the cash from a person unknown to you in Inglewood. You were then directed by EV how to deposit funds and into which accounts to deposit the funds and in what sums. Sometimes EV directed you to make cash deposits over the counter. He instructed you not to make deposits over $10,000, telling you, you would be required to produce identification for such deposits.
All of your instructions were received by messages on your mobile phone, including where and how to collect the money and the bank details for the money into which you were to deposit the cash amounts. At all times you communicated with EV via Viber. You say you collected $450,000 in cash from the unknown person in Inglewood.
Further details about the offending were explained by the sentencing Judge as follows (A1/36):
Between 18 and 20 January 2020, together you each [the Applicant and her husband] deposited various cash amounts into the bank accounts of unknown persons. Each of the cash deposits were equal to or less than $10,000 to avoid AUSTRAC’s mandatory reporting legislation requirements. The money activities in which you each became involved are described as cuckoo smurfing.
Over that three-day period, together you made 126 cash deposits totalling $387,745 into 49 separate bank accounts using a known money-laundering methodology. The account holders into which the money was deposited live in the Eastern States. The cash was the proceeds from unknown offences or criminal offending.
In the afternoon of 20 January, you were both arrested in the Murray Street Mall in the Perth CBD.
The sentencing Judge stated that the Applicant had conceded, to her credit, that she had previously been involved in similar offending (A1/40). However, in a written statement dated 7 March 2023 (A1/3, paras [39]-[41]) the Applicant’s evidence was:
… The Judge said at my sentencing hearing that I had admitted to being involved in similar offending. This statement was pointed out to me via my immigration lawyer during my interview with her. I now think there was a misunderstanding about what I said to my criminal lawyer.
I told my criminal lawyer on the day of my sentencing that when I was in Sydney - that is, before going to Perth - I knew that the trip to Perth would involve me accepting a delivery of some money and splitting it up between a large number of bank deposits. I explained to my criminal lawyer that I had already received some instructions in Sydney before I left. So, I knew what I was doing in that context; it was not an “isolated” or a “spur of the moment” offence. I accept that.
But I want the Tribunal to know that I have not done anything similar beforehand. This was the first time that I was asked to do something like this, by anyone. I did not do any bank deposits in Sydney, for example.
It is plausible that there may have been some translation issues and there is no other evidence that she has been involved in similar conduct (such as police records of interviews or any charges). However, although I would like to accept the Applicant’s evidence in this regard, I cannot because the Applicant having engaged in such conduct in the past was one of the factors upon which the Applicant was sentenced. Specifically, the sentencing Judge commented that the Applicant “is to be sentenced on the basis that her offending is not isolated or one-off” (A1/50).
The Applicant’s Money Laundering offence does not fall within any of the specific categories of offending that Direction No 99 states should be “viewed very seriously” or as being “serious” (paras 8.1.1(1)(a) and (b) of Direction No 99).
Nevertheless, the sentencing Judge commented that the offending was “serious” because the Applicant had travelled to Perth with the intention of laundering money, she knew the money was from criminal activity, because the offending was for commercial purposes, she was familiar with what she was required to do and knew what the risks were, was trusted by those higher up in the criminal organisation and involved her husband in the offending (A1/39-40).
A further indication that the Applicant’s Money Laundering offence should be viewed seriously is that she was sentenced to a term of three years and 10 months imprisonment with eligibility for parole. The sentencing Judge observed that, “I have come to the conclusion that the circumstances of this offending are so serious in the case of both of you that only a sentence of imprisonment is appropriate” (A1/52) (para 8.1.1(1)(c) of Direction No 99).
The Applicant has only committed one offence and so her offending cannot be regarded as frequent. I reject the Respondent’s submission that the Applicant’s offending was frequent because she made 126 transactions as part of that offence. Her conduct in making the transactions may have been frequent, but she was only convicted of one offence.
As the Applicant has been convicted of one offence, there is no trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 99).
Similarly, there is no cumulative effect of repeated offending because the Applicant has only committed one criminal offence and has been sentenced to one sentence of imprisonment (para 8.1.1(1)(e) of Direction No 99).
I am also required to consider whether the Applicant has provided false or misleading information to the Department of Home Affairs, including not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 99). There is no evidence of any such conduct.
Paragraph 8.1.1(1)(g) of Direction No 99, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect her migration status. She has not received any such warnings.
The Applicant has not committed any offences in another country, and so I am not required to consider whether any such offence is an offence in Australia (para 8.1.1(1)(h) of Direction No 99).
The Applicant has only been convicted of one serious offence of Money Laundering for which she received a lengthy sentence of imprisonment. She does not have a lengthy criminal history, has not offended frequently, there is no cumulative effect, and she has not provided false information or reoffended since being formally warned.
Overall, I find that paragraph 8.1.1 of Direction No 99, the nature and seriousness of the conduct, weighs moderately against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 99)
Paragraph 8.1.2(1) of Direction No 99 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 99 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen 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 decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
Nature of the harm (para 8.1.2(2)(a) of Direction No 99)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should she engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 99).
When sentencing the Applicant and her husband on 23 December 2020, the sentencing Judge described how money laundering assists criminal organisations to legitimise the proceeds of crime (A1/42):
The role each of you played was an important role, intended to enable the criminal organisation to launder – or distribute the proceeds of its criminal activities into legitimate bank accounts, intending to turn the cash into legitimate money. Without your offending, the profit made and earnings received by the criminal organisation by its criminal activities is reduced.
The sentencing Judge also adopted and incorporated the following paragraph from another decision which described the harms of money laundering (A1/47):
The laundering of the proceeds of criminal activity is the lifeblood of organised crime. To state the obvious, the ultimate object of much of the criminal activity in which such organisations engage is to obtain money in a form in which it can be used without altering the law enforcement authorities. The laundering of the proceeds of criminal activity is often the essential final step in achieving that general object. This underscores the importance of general deterrence in sentencing for offences of this kind.
Similarly, in TJQM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 54 at [56] I described the harms of money laundering to include the following:
… money laundering assists organised crime syndicates to function because it effectively “cleans” money from the proceeds of crime and also enables its movement outside of Australia so that it cannot be detected by law enforcement. The ability to “clean” money so that it is untraceable perpetuates the cycle of crime by ensuring that crime does pay. Money laundering facilitates and encourages future criminal activity, including potentially “serious conduct that does cause direct and significant harm” to the community (McKerracher J in RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266 at [48] cited by Member Burford in Zhuang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2228 at [97]). Should the Applicant reoffend in a similar manner, the associated harms to members of the community are broad ranging and potentially very serious and could include physical, psychological, and financial harms.
These harms are applicable to this application if the Applicant was to reoffend in a similar manner.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 99)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if she were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 99).
The Applicant is a 43-year-old woman who has a short criminal history consisting of one conviction. Apart from this conviction, she has lived in the Australian community as a law-abiding and (as was described by the sentencing Judge at A1/44) hard-working person. The sentencing Judge did, however, comment that her offending was not a one-off and thought that the Applicant had engaged in this type of conduct before. Nevertheless, the sentencing Judge stated that, “you have no criminal or road traffic record and, until this offending, you were to be regarded as a person otherwise of good character” (A1/44). This tends to suggest a lower likelihood of future reoffending, when compared with a person with a longer criminal history.
The Applicant was assessed by prison treatment assessors as being a low risk of reoffending. She scored one out of 22 when the Risk of Reoffending-Prison Version screening tool was administered with the range of scores being one to 22 (with 22 being the highest risk of reoffending). As a result, she was not assessed for any criminogenic programs due to being “a low risk of reoffending” (A1/173-175).
The Applicant has also demonstrated good prison behaviour, described as being compliant and polite, and was a minimum-security prisoner housed in a self-care unit (A1/143 and 150). Her parole review report dated 22 October 2021 stated that she has not engaged in any voluntary courses but has undertaken voluntary knitting for charities and has completed units in a Certificate I in entry to general education (A1/150). Issues with a person’s compliance in a controlled environment can raise concerns about their ability to comply with rules and laws in the community. I have no such concerns regarding the Applicant due to her good prison conduct.
The Prisoners’ Review Board of Western Australia (PRB) made a parole order with respect to the Applicant on 23 December 2021 (A1/68). The reasons for granting parole indicated that the PRB was of the view that with supervision in the community subject to conditions, the Applicant’s release would present an acceptable risk to the safety of the community. These reasons were:
1. You being assessed as a low risk of reoffending and therefore not meeting the criteria for inclusion in prison based treatment programmes.
2. You having a limited court history, comprising traffic offending.
3. The salutary impact of your first term of imprisonment and your first opportunity for parole supervision.
4. Your parole plan which includes confirmed suitable accommodation, an intention to recommence employment and support from ReSet.
The PRB also imposed minimal additional requirements on the Applicant as part of the parole order (A1/68). They were:
1. To attend programs and counselling as directed.
2. To engage in employment, training, or job seeking as directed.
3. Not to change address without the prior approval of the Community Corrections Officer.
The Applicant will not, however, have the benefit of parole to assist with her rehabilitation and reintegration if she is released into the Australian community (which could possibly lower any likelihood of reoffending even further). On her release date (23 December 2021), she was released into immigration detention. Her parole period then expired on 19 May 2023 (A1/68).
I also observe that my assessment of risk is different to that undertaken by the PRB for reasons including that a decision in the Applicant’s favour in this application would result in her being released into the community without supervision, conditions, or the prospect of returning to prison to serve the maximum term in the event of a breach. The PRB’s views do, to some extent, support a finding in a more general sense, that she is a low risk of reoffending and that she would pose a minimal risk to the safety of the community.
The Applicant has also expressed remorse for her offending. The sentencing Judge observed that the Applicant wrote a long letter apologising to the Court and to the Western Australian community for her offending which His Honour accepted as “a genuine apology” (A1/42). In a written statement dated 7 March 2023, the Applicant stated “I feel very sorry and stupid about my conduct. I know that I did the wrong thing. I know I cannot blame anyone but myself” (A1/3, para [36]). And further: “I will never commit another crime again … I have learned my lesson and the price I have paid as a result has been very high” (A1/4, para [42]). The Applicant continued to state: “There is no risk at all that I am going to commit another crime. I am not so stupid to do this or anything like this again” (A1/4, para [47]). The Applicant’s acceptance of responsibility for her offending and ability to appreciate the consequences of her actions is likely to be a protective factor that will reduce the likelihood of future reoffending.
I do, however, have some reservations about the Applicant’s insight into her offending based on her evidence at the hearing. The Applicant’s evidence was that she only became aware that the activity that she was about to engage in was money laundering after she collected the money in Perth and when the list of accounts for depositing the money was given to her (transcript/33-34 and 38). Her evidence was that before departing for Perth she thought that she was collecting money for a friend and handing it over to someone else. However, the fact that she instead told her husband they were going to visit Perth for a few days for a holiday (transcript/37) is telling. Her evidence was that if she had told her husband in Sydney that she was collecting money for a friend and handing it over to someone else, he would have stopped her (transcript/38-40). I think this is because she knew that what she would be doing was more than collecting some money and handing it over. It is more likely that she knew that what she would be doing was illegal, and she did not tell her husband because, when she described the proposed illegal activity, he would have stopped her.
Further, I was also not persuaded that the Applicant felt forced to go through with the offending after she had collected the money due to fears for her family’s safety. There is no evidence of any specific or veiled threats. At the highest, fears for her family’s safety may have been an assumption that the Applicant made (transcript/19-20). The sentencing Judge referred to the Applicant being concerned about where she was going to collect the cash and that she had refused to collect the cash in a car park because it was a public area, and that she wanted the cash brought to her hotel (A1/37). I am not persuaded that a person who was acting in fear would be able to negotiate the details of where to collect the money.
My impression, based on this evidence, was that the Applicant tried to minimise some aspects of her offending, perhaps to present herself more favourably to the Tribunal. This lack of insight does raise concerns about a likelihood of reoffending because it suggests that the Applicant has not taken full responsibility for her actions.
I accept, as the sentencing Judge did, that the Applicant was motivated for a commercial purpose. Her evidence at the hearing was that she was to be paid $2,500 for undertaking the cash deposits. I note that the sentencing Judge did not accept that the Applicant was only to be paid that sum but could not be satisfied beyond reasonable doubt as to the amount she was to receive (A1/39). There was a suggestion in the Applicant’s Parole Assessment from Adult Community Corrections that she thought she was depositing the money as a favour to a potential business connection (A1/142). The Applicant disagreed with this at the hearing, but even if that was the case, it can still be concluded that the motivation was nevertheless financial. The Applicant’s Parole Assessment from Adult Community Corrections further stated that she may benefit from financial counselling in the community (A1/144). If the Applicant returns to a similar environment, she may face financial pressures again. Indeed, one of the Applicant’s plans is to re-establish the business that she was running with her husband. She was under financial pressure when working in that business as well as working part time in a café. This caused her to seek out other opportunities to make money, which led to the offending. Financial counselling may be of assistance in addressing the factors behind the Applicant’s offending and for putting protective strategies in place so the Applicant can effectively navigate any financial pressure she faces in the future. However, there is no evidence that the Applicant plans to engage in financial counselling in the community.
The Applicant also appreciates the detrimental impact her conduct and her offending have had on her husband and children. The Applicant feels guilt and shame for involving her husband in her offending. In her written statement dated 7 March 2023 she stated (A1/4, para [43]):
I am very grateful to Kevin for his forgiveness. I owe it to Kevin to make it up to him for the trouble I have caused to him and his family. He deserves better.
As a result of her offending, she has not seen her children for three years. She is anxious to be reunited with them and appreciates the negative impact that her offending has had on them (A1/4-5, paras [44]-[46] and [63]):
I have not seen my daughters for over 3 years. I am crying with worry every day about them. I will not do anything which will cause us to split us up again. We have spent enough of our lives being separated.
I worked very hard to arrange for my daughters to come to Australia for a better life. I know that I have caused them heartache, pain and stress. I need to make it up to them just as much as I need to make amends for my husband.
…
All I want is to be a constant loving physical presence in my children’s lives and I want to make my absence up to them as best I can. I don’t want my children to have the added pressure of worrying about me or carrying pain because I cannot be physically present in their lives. They do not deserve to be punished for my poor choices.
She particularly appreciates the negative impact on her youngest daughter B, who has special needs. The Applicant stated (A1/5, para [59]-[62]):
I worry the most about the youngest: B. She has a severe learning disability. She needs special attention all the time, and frequent visits to doctors and health professionals, such as speech pathologists and psychologists.
I ring B on the way to school and back to make sure that she gets where she needs to go safely. I “walk” with her, while she is on the phone. She has had too many problems. She could get lost, or she could get into trouble. I need to look after her. She is in Year 6 but it is like she is still at kindergarten sometimes.
Kevin actually tried to have his parole changed to allow him to fly to Sydney and bring B back to live with him here in Perth. This would have allowed her to see me regularly and for Kevin to take her to all the health appointments that she needs. But it wasn’t possible.
I am so sad for B because she keeps asking when I will be back. I cannot explain the truth to her. She would not understand it. I am fortunate, at least, that her school has been helpful to her while I have been away. The school psychologist… and B’s support worker… are very kind. [The support worker] has organised for NDIS funding for B which I think has now been approved. But I want to look after B, not others. She needs her mum to feel safe and secure and loved. I know that. I feel guilty that the stress and confusion I have caused to B is so great.
The Applicant is anxious to be a good mother to her children, not to disappoint them again and has promised them a stable future (A1/5, para [55]-[57]):
It has been very difficult for the girls since my arrest in January 2020 because we have not been able to see each other for so long. I cannot even imagine not being able to see them permanently; this thought alone just knots my stomach.
I have missed so many important moments in their lives and I never want to put myself or them in that position again. Being separated from them for so long has been one of the hardest things for me to deal with.
I have made many promises to my children. I have told them that moving forward, I will be there for them, that I will do better, that I will not be absent in their lives again, that I will be able to take them to school, to the doctors, or to their hobby activities, and that I will see them graduate. I will not cause any more disappointment in their young lives.
The Applicant travelled to Perth in January 2020 to engage in the money laundering. She and her husband were arrested on 20 January 2020. She has been in prison or immigration detention since that time. The salient effect of prison and then immigration detention, the effect of being separated from her children and husband for over three years, and her appreciation of the negative impact that her offending has had on them, particularly on B, is likely to be a protective factor that will motivate the Applicant not to reoffend. So too is the prospect of being deported and having to permanently reside in a different country from her husband and children.
In her written statement dated 7 March 2023 the Applicant described seeing a psychologist in prison. She stated (A1/4, para [46]):
When I was in prison, I went to see the psychologist around 7 or 8 times. That helped me cope with the guilt and the separation from my family and to be motivated to make the best of my future in Australia. I want to go back to my job as a wife and mother, and to also find a job to earn money in the right way.
Self-referring to the psychologist in prison shows a willingness and motivation to seek help when needed. The Applicant’s comments about how she benefitted from seeing the psychologist also demonstrate a pro-social mindset. As I mentioned above, the Applicant was described by the sentencing Judge as hard-working. She has worked in marketing as well as in a business she owned with her husband and in a café. She also has a marketing qualification from Vietnam. Her work ethic and skills may assist her to find work and to make meaningful use of her time if she is released into the community, which will be a further protective factor.
In summary, the following factors are not protective or suggest some likelihood of reoffending:
(a)The Applicant tried to minimise some of the details of her offending, including when she realised that what she was proposing to do was illegal, which suggests she does not have full insight into her offending.
(b)The motivation for the offending was likely financial and there is no evidence of any plans to engage in financial counselling in the community. If the Applicant returns to a similar environment, she may face financial pressures again.
The following factors are protective and may reduce the likelihood of the Applicant reoffending:
(a)She has no prior criminal history, having committed these offences as a 40-year-old woman. This shows that she is capable of living in the community as a law-abiding person.
(b)She was assessed by prison assessors as being a low risk of reoffending and as not requiring any rehabilitative courses.
(c)Her attending seven or eight sessions with a psychologist in prison which demonstrates an ability to seek help if needed and to address the emotional impact of her offending behaviour.
(d)Her good prison conduct which suggests that she will be able to behave lawfully outside of a controlled environment.
(e)The PRB’s decision to release her on parole because her release was an acceptable risk to the safety of the community.
(f)Her work history and good work ethic which will help her to find employment and to make meaningful use of her time.
(g)She is remorseful for her offending and feels guilt and shame for involving her husband in her offending.
(h)The Applicant is a loving mother and is deeply remorseful and appreciates the negative impact her offending has had on her three daughters, and particularly her youngest daughter, B, who has special needs. She strongly wants to be reunited with them and to resume her responsibilities as a mother after not seeing them for over three years.
(i)The prospect of deportation and permanent separation from her husband and children.
Overall, after balancing the protective factors against those that suggest a likelihood of reoffending, I find that the Applicant is likely to be a minimal to low risk of reoffending.
I am not of the view that the Applicant’s Money Laundering offence falls within the type of offending whereby even a minimal or low risk of such conduct occurring again is unacceptable.
I therefore find that paragraph 8.1.2 of Direction No 99, being the risk to the Australian community should the Applicant commit further offences, weighs slightly against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 99
I have found that paragraph 8.1.1 weighed moderately, and paragraph 8.1.2 weighed slightly against revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs slightly to moderately against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 99)
Paragraph 8.2 of Direction No 99 requires decision-makers to have regard to family violence committed by the non-citizen. The Applicant has not committed any family violence and so this primary consideration is not applicable.
The strength, nature and duration of ties to Australia (paras 8(3) and 8.3 of Direction No 99)
Paragraph 8.3(1) of Direction No 99 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or who have an indefinite right to remain in Australia:
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Further, in paragraph 8.3(4) of Direction No 99, decision-makers are required to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. Specifically:
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)The length of time the non-citizen has resided in the Australian community, noting that:
• considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
• more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
• less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant’s husband, Kevin, was born in Cambodia, and has lived in Australia for approximately 35 years, having migrated to Australia from Vietnam with his parents and brother in 1988. He is an Australian citizen. His parents live with him in Australia, and he has custody of his two sons from his previous marriage. As the Applicant’s co-offender, Kevin has been completing his parole in Western Australia which expires in May 2023. In the interim, his elderly parents have been looking after his children and the Applicant’s three children in Sydney. Despite the Applicant involving him in the Money Laundering offence, Kevin remains committed to her and continues to love and care for her. He said that he “couldn’t live without her” (A1/59). He is “desperate” for her to remain in Australia and for them to resume their lives with the children together (A1/56). He would not return to Vietnam if the Applicant was returned there because he is supporting his parents and looking after the children in Australia. If the Applicant returns to Vietnam, he will be the sole carer for his two children and the Applicant’s three children (one of whom, J, is 19 years old). He regards the Applicant’s children as his own children (transcript/86, 90).
I find that Kevin would suffer emotional detriment if the Applicant was returned to Vietnam. Although he could visit her, he is devoted to her and has planned his future life with her and the children. He is also likely to suffer practical and emotional detriment as he will be supporting his elderly parents and the five children by himself.
J, the Applicant’s 19-year-old daughter, who has permanent residence status in Australia, gave evidence in a written statement and at the hearing that she has been struggling to cope without her mother and stepfather. She stated that her step-grandparents do not provide any emotional support and provide very little physical or financial support. Communication with them is difficult because they speak different dialects and do not understand each other. She described having to care for her sisters and having to work since the age of 15 to help pay bills and as having to do most of the things a mother or father would do such as shopping, laundry, and cooking, with occasional help from family friends. J described her life without her mother as “exhausting” and that she has become “even more stretched” because she has started university and travels four hours each day to get to and from campus. If her mother can stay in the Australian community, J will be able to move out of home to be closer to her university campus. She also works four days a week to help support the family.
J stated that she is very close to her mother, and they share a strong bond. She is very anxious to be reunited with her mother and for the family to be together and to spend quality family time with the Applicant. J’s evidence was that it would be too disruptive to her brothers and sisters’ lives to return to Vietnam with the Applicant. J stated that without her mother in Australia, she “will be forced to continue to face the daily stress and pressure of trying to manage everything” and will have to give up her dream of moving closer to the university campus because she will have to stay at home to help look after her siblings.
J has also struggled to look after her younger sister, B, who has autism and who can harm herself and others when she is frustrated. J is worried about B’s mental state if their mother is not able to return to live with them (A1/77-79; transcript/73-75). Although Kevin will return to Sydney in May when his parole expires and will be able to provide some assistance, including financial assistance, it is still likely that J would suffer emotional detriment due to the absence of a mother she is very close to, and also practical detriment, because although Kevin may provide some assistance, some of her mother’s responsibilities are still likely to fall to her.
I have considered the interests of the Applicant’s minor daughters, 16-year-old KD and 11-year-old B, as part of the best interests of minor children primary consideration below. Under that primary consideration, I also considered Kevin’s children, the Applicant’s stepsons, 17-year-old, H, and 15-year-old, R. I have found that the Applicant’s minor children and stepchildren will be negatively affected if the Applicant was removed from Australia. The Applicant’s three children and her two stepchildren (each of whom have permanent residence status in Australia) are indicative of her close ties to Australia.
Two of the Applicant’s friends (an Australian citizen and a permanent Australian resident) have provided statutory declarations in support of her, which are indicative of some ties to Australia (R1/94-99; A2/17).
The Applicant has resided in Australia for the relatively short period of time of approximately seven years, having arrived in January 2016 when she was approximately 36 years old. Her Money Laundering offence was committed in January 2020, approximately four years after she arrived in Australia. I do not think that it can be concluded that she started offending soon after arriving in Australia.
The Applicant has made some contributions by working part time in a coffee shop, whilst at the same time working in a waterproofing business she owned with her husband. The sentencing Judge observed that the Applicant had “been a hard worker” (A1/44; transcript/42). She has not undertaken any other community or volunteer work.
Although she did not start offending shortly after arriving in Australia, her formative years were spent in Vietnam. This slightly lessens the weight of the time she has spent in Australia.
The Applicant’s ties to her husband, adult daughter J, children and stepchildren in Australia can be regarded as strong and they would be negatively impacted if she was removed to Vietnam. She has only resided in Australia for approximately seven years having arrived as a 36-year-old adult but did not start offending shortly after arrival. She has made some contributions through employment. On balance, I find that the strength, nature and duration of the Applicant’s ties to Australia weighs moderately in favour of revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision (paras 8(4) and 8.4 of Direction No 99)
Paragraph 8(4) of Direction No 99 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration.
Direction No 99 states that decision-makers must determine whether the decision under review is, or is not, in the interests of a child affected by the decision. The first three paragraphs of 8.4 provide:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) of Direction No 99 sets out the factors that the decision-maker must consider where relevant:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has three daughters who live in Sydney and hold Australian permanent residency.
J is 19 years old and because she is an adult, I considered the impact of my decision on her above under the primary consideration of strength, nature, and duration of ties to Australia.
Two of the Applicant’s daughters are minors. KD is 16 years old (A1/93), and B is 11 years old (A1/99).
The Applicant also has two stepsons who are Kevin’s sons from his previous marriage. They are 17-year-old H (A1/100) and 15-year-old R (A1/101).
The Applicant stated that after she and Kevin were married, “the boys became my children” (A1/4, para 49). Similarly, Kevin stated that, “there is no “my kids” or “your kids”; the children are all ours” (A1/57, para [24]).
Prior to the Applicant and Kevin travelling to Perth and going to prison, the five children lived with the Applicant and Kevin. Kevin’s elderly parents also lived with them.
Since the Applicant and Kevin have been in prison, the children have been cared for by Kevin’s parents who are in their mid-eighties. Kevin’s mother has a heart problem and difficulty walking. The Applicant’s daughters find Kevin’s elderly parents difficult to communicate with because they speak a different dialect (A1/4, para [50]-[51]).
The Applicant’s evidence was that Kevin’s parents are more focussed on the two boys (A1/4, para [51]).
16-year-old daughter, KD
Much of the information before me concerns 19-year-old J, 11-year-old B, or the Applicant’s three daughters together. There is less information about KD as an individual.
The relationship between the Applicant and KD is parental. The Applicant is a loving mother who is devoted to her daughters. Although she has not seen KD since she departed Sydney for Perth in January 2020, the Applicant called her children three times a day in prison and had a one hour skype session with them per month, with both being the maximum allowed. In immigration detention she calls the children multiple times per day because she has a mobile (A1/4, para [52]). I infer from this evidence that KD has a close and loving relationship with her mother (para 8.4(4)(a) of Direction No 99).
There are approximately two years until KD turns 18. Although this is not a substantial amount of time, KD has been separated from her mother since she was approximately 13 years of age. This is a significant time in an adolescent’s development when KD would have benefitted from her mother being present. The Applicant’s evidence was that KD had been bullied at school and that she had helped her to change schools in 2021 (transcript/24). My impression of the Applicant is that she is a loving mother who is devoted to her children. She would be actively involved in KD’s life and would be a positive role model to KD if returned to the Australian community (para 8.4(4)(b) of Direction No 99).
There is no evidence to suggest that the Applicant’s prior conduct has had a direct negative impact on KD, other than the indirect impact of KD being separated from her mother during her formative adolescent years. In terms of future conduct, I have found that the Applicant is a minimal to low risk of reoffending and I further find that it is unlikely that the Applicant would engage in any future conduct that would have a negative impact on KD (para 8.4(4)(c) of Direction No 99).
The Applicant could maintain contact with KD by telephone or via the internet (such as Skype) if she is returned to Vietnam. However, this would be a poor substitute to the Applicant being physically present to raise and care for KD on a daily basis (para 8.3(4)(d) of Direction No 99).
KD’s father is not involved in her upbringing. Currently, she is being cared for by her stepfather’s elderly parents who, I accept, are more focussed on their grandsons. J’s evidence was that (A1/77, para [16]-[17]):
My sisters and I currently live with Kevin’s parents and our 2 step-brothers. Living with our step-grandparents over the past 3 years has been tough. They do not have much time for us. Apart from sleeping in their house and sometimes cooking for B when I cannot, they do not provide me and my sister [KD] with any emotional support and very little physical or financial support.
We live in my step-grandparents house but we have very little communication and interaction with them. Communicating is difficult because we speak different dialects and do not understand each other. Even though we live with Kevin’s family, my sisters and I feel alone and on our own without our mother or Kevin there.
I accept that the role of the children’s step-grandparents in KD’s daily care and upbringing is likely to be very limited and that KD is likely to feel isolated and alone without her mother there. In the absence of the Applicant and Kevin, the bulk of the parental responsibilities have been undertaken by KD’s 19-year-old sister, J who has struggled with work, study, household duties and caring for her two younger sisters. J’s evidence was that if their mother returns to live with them, she will be able to provide emotional stability to KD and B, and KD will not have to take on extra responsibilities to care for B like she has had to (A1/78, para [30]). Kevin is a devoted stepfather who will care for the Applicant’s daughters as his own when he returns to Sydney. However, he is not KD’s father and only married the Applicant in 2016. Despite Kevin’s commitment to the Applicant’s children, he is not an adequate substitute for their mother (para 8.4(4)(e) of Direction No 99).
There are no known views of KD, but it is likely that she misses her mother and wants her mother to come home (para 8.4(4)(f) of Direction No 99).
The Applicant is, on the evidence before me, a loving and devoted mother who is desperate to be reunited with her daughters and to be involved in their daily lives and upbringing. There is no risk of KD being abused or neglected by the Applicant (para 8.4(4)(g) of Direction No 99). There is no evidence that KD has experienced any physical or emotional trauma from the Applicant’s conduct (para 8.4(4)(h) of Direction No 99).
After considering and weighing the factors in paragraphs 8.4(4)(a) to (h) of Direction No 99, I find that revocation of the Cancellation Decision is in the best interests of KD. I find that KD’s interests weigh strongly in favour of the revocation of the Cancellation Decision.
11-year-old daughter, B
B has been diagnosed by her school psychologist as having a mild intellectual disability. The psychologist stated that B “exhibits significant difficulties with learning, executive functioning and peer relationships in the school environment” and that she “may be at risk of developing mental health concerns, such as depression, in the context of her current psychosocial circumstances” (A1/129-130). B attends school as part of an intellectual disability support class (A1/131).
A plan for B, starting on 9 February 2023, has recently been approved for National Disability Insurance Scheme (NDIS) funding for capacity building supports including an occupational therapist to help self-management skills, establishing routines and building independence in daily life, funding for assessment of assistive technology and functional capacity and funding for psychology to assist with building resilience and managing emotions (A1/106 and 115).
The relationship between the Applicant and B is parental. As I stated above, I accept that the Applicant is a loving mother who is devoted to her daughters and who has communicated with them daily over the past three years. The Applicant also described being on the phone with B each day to “walk” her to school because the Applicant is fearful for B’s safety and wellbeing when walking by herself due to her special needs (A1/5, para [60]). J’s evidence was that B only listens to the Applicant, that the Applicant has a positive impact on B and that no one else has been able to fill those shoes. J further stated that she has tried her best to care for B, but that B can engage in self-harming behaviours and can physically hurt others and that the Applicant is the best at dealing with that kind of behaviour from B (A1/78, para [32]-[33]). I infer from this evidence that B is very close to her mother and that her mother is likely to be a positive influence on B and her wellbeing (para 8.4(4)(a) of Direction No 99).
There are approximately seven years until B turns 18. This is a substantial amount of time, particularly when B’s special needs are considered. B has been separated from the Applicant since she was approximately eight years old. This is a significant time during B’s formative years and development where she would have benefitted from her mother being present. B’s family caseworker provided a letter dated 3 March 2023, which states that B’s family has been receiving long-term case management support from the Family Preservation Program since 6 July 2022. The letter stated that: “There have been reports of risk of significant harm to the child for concerns of neglect”. Further, in the letter, B’s caseworker outlines how B has had limited support at home, how her mother’s absence has impacted B’s wellbeing and development and how the Applicant has tried to engage in B’s care as best she could remotely (A1/104-105):
The family preservation program received a referral from B’s school psychologist regarding concerns about limited parental supervision and limited informal & formal support. The Family Preservation Program has provided fortnightly home visits to meet with B providing emotional support, support at medical appointments, liaising with family members & school regarding B’s needs, and assistance with completing documents for school & NDIS application. As a family caseworker, I am in contact with [the Applicant] every fortnight via telephone calls to discuss B’s needs and communication about the progress of NDIS application.
[The Applicant] supports her daughter by calling her daily in the morning via video call [Facetime] to ensure B’s safety when she walks to and from school. [The Applicant] will communicate with her eldest daughter to follow through with tasks to care for B such as reminding her to shower, change to clean clothes, eat healthy food, and so forth. However, [the Applicant] reported B can refuse to answer her phone calls when she is upset and refuse to follow through with her eldest sister’s instructions.
The limited informal and formal support has delayed the process of B receiving a formal diagnosis. As there are no family members that were able to take B to paediatrician for a health check-up, limited family members that were able to facilitate communication between school concerns surrounding B’s learning needs or take her to appointments for instance speech assessment, blood test, optometrist, and hearing test. Since working with B, she has been assessed by the school psychologist and was diagnosed with Mild Intellectual Disability.
The Applicant would be a positive role model to B if returned to the Australian community and her presence is likely to be beneficial in caring for B and ensuring she attends appointments and achieves the interventions she needs to achieve her maximum potential, despite her special needs (para 8.4(4)(b) of Direction No 99).
There is no evidence to suggest that the Applicant’s prior conduct has had a direct negative impact on B, other than the indirect impact of B being separated from her mother and not being able to have the emotional support and interventions she requires to assist her wellbeing and development. In terms of future conduct, and similarly to KD above, as I have found the Applicant is a minimal to low risk of reoffending it is unlikely that the Applicant would engage in any future conduct that would have a negative impact on B (para 8.4(4)(c) of Direction No 99).
The Applicant could maintain contact with B by telephone or via the internet (such as Skype) if she is returned to Vietnam. However, continued physical separation is likely to be detrimental to B’s development and wellbeing. In a report, B’s psychologist stated, “If B’s mother is released from detention and allowed to return to be with her daughter, this would minimize and prevent the adverse effects as described in question 8 [B’s psycho-social development being jeopardised]” and that: “B’s psycho-social emotional needs are more likely to flourish with the care and love of her biological mother. The restoration of the mother-child relationship allows a more positive developmental outlook for B as she transitions into a critical stage of development, adolescence and young adulthood” (A1/119). Given B’s special needs, communicating remotely is likely to be inadequate in the long-term and B is likely to suffer emotional, practical, and developmental detriment if her mother is not physically present in her life (para 8.3(4)(d) of Direction No 99).
Regarding whether other persons fulfil a parental role (para 8.4(4)(e) of Direction No 99), B’s father is not involved in her upbringing. Like her older sister KD, B is being cared for by her stepfather’s elderly parents who, I infer from the evidence are not able to adequately care for her or meet her needs. Much of B’s care has been left to her older sister J who is struggling with the responsibility. The need for B to have her mother physically present to care for her is reflected in the following passage from B’s caseworker (A1/105):
B will greatly benefit from a parental figure in the home that can ensure her emotional and physical needs are met. A parental figure will be able to encourage a consistent routine in the home and provide practical support such as taking her to appointments, support with schoolwork, picking her up from school if she is unwell, and cooking healthy meals. The eldest sister has work and study commitments and she has limited time to respond to and care for B. Her grandparents do not speak English and are physically unable to support her with medical appointments. Therefore, in my view, B’s mother can provide practical, physical and emotional support for B’s overall well-being.
Kevin is B’s stepfather and although he is willing to care for B if the Applicant is returned to Vietnam, B seems to have a special bond with her mother who is the person best able to calm and manage her. B’s psychologist also wrote in a report concerning B that “her psychological and developmental trajectory has been adversely impacted by her mother being detained over the past two years, and if her mother is deported from Australia the risk is exacerbated and her psycho-social emotional development will be jeopardised further” (A1/119). I find that B’s interests are best served by having her mother present in her life to care for her and support her.
I accept the Applicant’s evidence that B keeps asking when the Applicant will be back (A1/5, para [62]). I infer that B she misses her mother and wants her mother to come home (para 8.4(4)(f) of Direction No 99).
As I stated above for KD, the Applicant is a loving and devoted mother who is desperate to be reunited with her daughters and to be involved in their daily lives and upbringing. There is no risk of B being abused or neglected by the Applicant (para 8.4(4)(g) of Direction No 99). There is no evidence that B has experienced any physical or emotional trauma from the Applicant’s conduct (para 8.4(4)(h) of Direction No 99).
After considering and weighing the factors in paragraphs 8.4(4)(a) to (h) of Direction No 99, I find that revocation of the Cancellation Decision is in the best interests of B. I find that B’s interests weigh very strongly in favour of the revocation of the Cancellation Decision.
17-year-old and 15-year-old stepsons
There is less information before me concerning Kevin’s sons (the Applicant’s stepsons), 17-year-old H and 15-year-old R, and so I have considered their interests together, pointing out where those interests differ.
The Applicant is the stepmother of H and R. Although she is not their biological mother, I accept the Applicant and Kevin’s evidence that when they married, they took on the responsibility of each other’s children. The Applicant’s evidence was that she speaks to H twice a week, and that she speaks to R more frequently than H (transcript/27-28). I infer from this evidence that the Applicant has a close relationship with H and R (para 8.4(4)(a) of Direction No 99).
H is in year 12 at school and there is only one year until he turns 18. There are approximately three years until R turns 18. Although there is a short period of time until H turns 18, and a relatively short period until R turns 18, they were living with their father and the Applicant as a family before their father and the Applicant travelled to Western Australia and went to prison. The Applicant is committed to treating her stepsons as her own children and is likely to be a positive role model to them if returned to the Australian community (para 8.4(4)(b) of Direction No 99).
There is no evidence to suggest that the Applicant’s prior conduct has had a direct negative impact on her stepsons, other than the indirect impact of their father and stepmother being separated from them for nearly three years. In terms of future conduct, I have found that the Applicant is a minimal to low risk of reoffending. It is unlikely that she would engage in any future conduct that would have a negative impact on her stepsons (para 8.4(4)(c) of Direction No 99).
The Applicant could maintain contact with her stepsons by telephone or via the internet (such as Skype) if she is returned to Vietnam. However, this is likely to be less beneficial than the family unit staying together in the one household where H and R will have both their father and stepmother present to support them (para 8.3(4)(d) of Direction No 99).
H and R have been living with their grandparents. Kevin has recently finished his parole and will be returning to the family home in Sydney to be a father to his sons and stepdaughters. This means that H and R will have their father to care for them. I do note, however, that it will be more challenging for Kevin to care for all five children without the Applicant, including a child with special needs, and these demands may impact on his ability to parent H and R. The Applicant’s evidence was that H and R’s biological mother lives nearby but has had minimal involvement in their upbringing. The Applicant stated H and R’s mother sees them overnight every second weekend (transcript/30). Therefore, if the Applicant is returned to Vietnam, H and R will have two biological parents in their lives (para 8.4(4)(e) of Direction No 99).
There are no known views of H and R (para 8.4(4)(f) of Direction No 99).
The Applicant loves her children and is dedicated to her stepsons who she regards as her own children. There is no risk of H and R being abused or neglected by the Applicant (para 8.4(4)(g) of Direction No 99). There is no evidence that they have experienced any physical or emotional trauma from the Applicant’s conduct (para 8.4(4)(h) of Direction No 99).
After considering and weighing the factors in paragraphs 8.4(4)(a) to (h) of Direction No 99, including that they have two biological parents to care for them, but would likely benefit from having their stepmother in their lives to help care for them, I find that revocation of the Cancellation Decision is in the best interests of H and R. I find that their interests weigh moderately in favour of the revocation of the Cancellation Decision.
Expectations of the Australian community (paras 8(5) and 8.5 of Direction No 99)
A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
These expectations are set out in paragraph 8.5 of Direction No 99, which provides:
(1)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.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f) worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community's expectations in the particular case.
I must give effect to the “norm” stipulated in paragraph 8.5(1) of Direction No 99, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. The Applicant has breached this expectation by not obeying Australian laws when she committed the serious offence of Money Laundering. Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.5(1) of Direction No 99).
As is evident from the reference to the “norm” in paragraph 8.5(1) of Direction No 99, I am being told unequivocally what the community’s expectations are. Further, paragraph 8.5(4) of Direction No 99 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them (see Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [41]-[44]).
I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman). I note that Deputy President Boyle was writing about the previous Direction No 90, however the wording in Direction 99 is identical in this regard, and therefore those observations apply equally to Direction No 99.
In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis and footnotes omitted.)
Further detail about the Australian community’s expectations with respect to certain types of conduct is given in paragraph 8.5(2) of Direction No 99. That paragraph states that the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.5(2)(a)–(f). The Applicant’s offending does not fall within any of these sub-paragraphs.
Paragraph 8.5(3) of Direction No 99 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Thus, even though I found above that the Applicant is likely to pose a low risk of reoffending, the community’s expectations as stated apply regardless.
Further, paragraph 8.5(4) of Direction No 99 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case. I therefore cannot speculate about what the community’s views might be about the Applicant.
Overall, I find that the primary consideration in paragraph 8.5 of Direction No 99, being the expectations of the Australian community, weighs moderately against the revocation of the Cancellation Decision.
OTHER CONSIDERATIONS (PARA 9(1) OF DIRECTION NO 99)
As I outlined above, Direction No 99 directs decision-makers to have regard to a non-exhaustive list of several other considerations to the extent they are applicable.
Legal consequences of decision under section 501 or 501CA (para 9(1)(a) and 9.1 of Direction No 99)
Paragraph 9.1 of Direction No 99 identifies the legal consequences that decision-makers must bear in mind when making a decision under s 501 or 501CA of the Migration Act.
The first sub-paragraph, 9.1(1), of Direction No 99, outlines that a non-citizen is liable for removal from Australia, notwithstanding any non-refoulement obligations:
(1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
In other words, if I affirm the Reviewable Decision, the Applicant will likely be removed to Vietnam as soon as is reasonably practicable and she will remain in immigration detention until she is removed.
Further, if she is removed to Vietnam, it is likely that the Applicant will face a range of restrictions which would make it unlikely that she would meet the criteria under the Migration Act for a visa to enable her to re-enter Australia.
The next two sub-paragraphs of Direction No 99, 9.1(2) and (3), address Australia’s non-refoulement obligations:
(2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
As contemplated by sub-paragraph 9.1(3) of Direction No 99, the Applicant has not raised any non-refoulement obligations, nor do they arise from the Applicant’s circumstances or on any of the materials before me.
For completeness, I note a written statement from the Applicant’s friend dated 31 March 2021 stated that sending the Applicant back to Vietnam would be a “dead sentence and she shall not survive back at her hometown” and that she will be discriminated against (R1/97, para [5]). This statement appears to be baseless and there is no evidence that the Applicant will face harm or will not be able to survive if returned to Vietnam.
The Applicant’s removal is a consequence of the operation of Australia’s migration laws, and as there are no non-refoulement considerations that would apply to the Applicant, I give this consideration neutral weight.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 99)
Paragraph 9.2(1) of Direction No 99 provides:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant is 43 years of age. She does not have any physical and mental health issues that would impact upon her ability to establish herself and maintain basic living standards.
She came to Australia as an adult in January 2016 when she was approximately 36-years old and so there would not be any language or cultural barriers if she was returned to Vietnam. I also note that she has travelled back to Vietnam four times since her arrival in Australia (R1/120-121).
The Applicant would have some social support if returned to Vietnam. Her parents, older sister and younger brother reside there. She also has extended family there including nine aunties, approximately 18 cousins and five nieces and nephews (transcript/66-67). The Applicant’s evidence was that she was uncertain as to whether her family in Vietnam could provide her with any financial assistance if she is returned there. However, the Applicant’s younger brother previously loaned her $150,000 so she could come to Australia, establish herself and bring her children to Australia. It is therefore likely he may be able to assist her if she is returned to Vietnam.
The Applicant also has work experience in Vietnam. Prior to leaving she ran a construction business with her ex-husband and worked as an employee of another company. She also completed a four-year degree in marketing in Vietnam (transcript/67). Her work history and degree are likely to assist her to obtain employment if she is returned to Vietnam.
If the Applicant is returned to Vietnam, she will be separated from her husband, children and stepchildren and is likely to suffer emotional detriment as a result. The Applicant’s husband agreed that he would visit her if she was returned to Vietnam (transcript/91), and her daughter J said that it would be difficult to visit for financial reasons but that she would try her best to visit her mother in Vietnam (transcript/79).
There is no evidence that the Applicant will not have access to the same social, medical, and economic supports as other citizens of Vietnam.
I find that there are no significant impediments to the Applicant being able to establish herself and maintain basic living standards if she was returned to Vietnam. Consequently, this consideration should be given neutral weight.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 99)
Paragraph 9.3(1) of Direction No 99 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations). Unlike a violent offence, for example, there was no specific victim of the Applicant’s Money Laundering offence.
Consequently, I give this other consideration neutral weight.
Impact on Australian business interests (paras 9(1)(d) and 9.4 of Direction No 99)
Paragraph 9.4(1) of Direction No 99 states that decision-makers should consider the impact of a decision whereby the Applicant is not allowed to remain in Australia on any business interests. It provides:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before me and is therefore not relevant.
THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 99.
For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 99. These were:
(a)The protection of the Australian community from criminal or other serious conduct primary consideration weighed slightly to moderately against the revocation of the Cancellation Decision.
(b)The strength, nature and duration of the Applicant’s ties to Australia weighed moderately in favour of the revocation of the Cancellation Decision.
(c)The best interests of the Applicant’s minor daughter, KD weighed strongly and the best interests of the Applicant’s minor daughter, B weighed very strongly, in favour of the revocation of the Cancellation Decision. The best interests of the Applicant’s stepsons, H and R, weighed moderately in favour of the revocation of the Cancellation Decision.
(d)The expectations of the Australian community weighed moderately against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations that were relevant. These were:
(a)I gave neutral weight to the other consideration of the legal consequences of the decision.
(b)The extent of impediments if removed other consideration was given neutral weight.
(c)The impact on victims other consideration was also given neutral weight.
As is evident from this summary, the primary and other considerations for and against revocation of the Cancellation Decision are closely balanced.
Overall, I find that the primary considerations of the best interests of minor children (which weighed strongly with respect to KD, very strongly with respect to B, and moderately with respect to H and R, in favour of revocation of the Cancellation Decision), together with the strength, nature, and duration of the Applicant’s ties to Australia (which weighed moderately in favour of revocation of the Cancellation Decision), outweigh the considerations that weighed against the revocation of the Cancellation Decision. These were the protection of the Australian community which weighed slightly to moderately, and the expectations of the Australian community which weighed moderately, against the revocation of the Cancellation Decision.
I therefore find that there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to set aside the Reviewable Decision and substitute a new decision that the Cancellation Decision is revoked.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 23 November 2021, is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act.
I certify that the preceding 181 (one hundred and eighty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
..........[Sgd].........................................................
Associate
Dated: 26 June 2023
Date of hearing: 3 and 4 May 2023 Representative for the Applicant: Ms J Edis, Putt Legal Representative for the Respondent:
Ms D Jones-Bolla, Sparke Helmore Lawyers
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