Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 181
•16 February 2023
Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 181 (16 February 2023)
Division:GENERAL DIVISION
File Number: 2022/9800
Re:Phuong Mai Thi Nguyen
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
reasons for Decision
Tribunal:Senior Member Dr M Evans-Bonner
Date:16 February 2023
Place:Perth
On 8 February 2023, I handed down the following decision:
The Reviewable Decision, being the decision of a delegate of the Respondent dated 23 November 2022, 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).
These are the reasons for my decision.
..............[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 – numerous shoplifting offences, cultivate cannabis offence – Applicant is a 43-year-old woman who arrived in Australia from Vietnam she was 19-years-old as the holder of a student visa – later granted a Spouse (Subclass 801) visa which was mandatorily cancelled – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – no family violence – best interests of minor niece and nephew in Australia – expectations of the Australian community – links to the Australian community – strength, nature and duration of ties to Australia – interests of 18-year-old son and 21-year-old daughter considered as part of the Applicant’s links to the Australian community – Reviewable Decision set aside and substituted
Legislation
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(2), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
Cases
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
SCJD and Minister for Home Affairs [2018] AATA 4020
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
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) paras 4(1), 5.1, 5.1(3), 5.2, 5.2(4), 5.2(5), 6, 7, 7(2), 8, 8(1), 8(2), 8(3), 8(4), 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), 8.1.2, 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(4), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 8.4(3), 8.4(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.1(1), 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4.1, 9.4.1(1), 9.4.1(2), 9.4.2(3)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
16 February 2023
Background
1. The Applicant is a 43-year-old woman who was born in Vietnam.
2. She came to Australia on 3 July 1998 when she was 19 years old as the holder of a Student (Subclass 560) visa. She was granted a Spouse (Subclass 820) visa on 2 November 1999 and was subsequently granted a Spouse (Subclass 801) visa on 23 April 2014 (the Visa) (G10; G13/61).
3. The Applicant has a lengthy criminal history and has committed offences in New South Wales and Western Australia. She began offending shortly after arriving in Australia, with her first conviction for “shoplifting value <=$2000” being on 17 September 1998 (G5/40).
4. After not committing any offences for approximately five years, the Applicant was convicted in the Perth District Court of “cultivate a prohibited plant with intent to sell or supply”. On 6 August 2021 she was sentenced to one year and 10 months imprisonment and was declared a drug trafficker (G5/37; G8/54).
5. Consequently, the Applicant’s Visa was mandatorily cancelled on 31 August 2021 while she was in prison pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that she failed the character test due to having a substantial criminal record and was serving a fulltime sentence of imprisonment (G13/61) (Cancellation Decision).
6. When the Applicant was released on parole on 16 June 2022 (A1), she went into immigration detention.
7. The Applicant requested revocation of the Cancellation Decision on 7 September 2021 (G19). She provided a personal circumstances form (G20).
8. Between 28 September 2021 and 11 November 2022, she provided submissions and statements in support of her revocation request, as well as other evidence, including after requests for further information were made by the Department of Home Affairs (Department) on 25 August 2022 and 8 November 2022 (G21-G39; G42; TB1-TB3).
9. However, on 23 November 2022, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (G3/15). This is the Reviewable Decision currently before me.
10. The Applicant was notified of the Reviewable Decision by email on 24 November 2022 (G3/12).
11. On 1 December 2022, the Applicant lodged an application in the General Division of this Tribunal seeking a review of the Reviewable Decision (G2). Therefore, the application for review was lodged within the nine-day period prescribed by s 500(6B) of the Migration Act.
12. Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 24 November 2022, meaning that I must hand down a decision on or before 16 February 2023.
Issues
13. 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 the Applicant 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
14. The hearing of this application was in person on 1, 2 and 6 February 2023.
15. The Applicant was represented by Mr SJ Young of counsel instructed by Ms M Y Tran of MYT Nguyen Solicitors. The Respondent was represented by Ms D Jones-Bolla of Sparke Helmore Lawyers.
16. The Applicant gave evidence on the first and second day of the hearing with the assistance of a Vietnamese interpreter.
17. Clinical Psychologist Dr Indi Pattni gave evidence by Microsoft Teams on the first day of hearing. On the third day of the hearing, the Applicant’s daughter, gave evidence.
18. I admitted the following documents into evidence at the hearing:
(a)Applicant’s witness statement dated 24 January 2023 with annexure - parole order (Exhibit A1);
(b)Applicant’s bundle of character references (Exhibit A2);
(c)Section 501 - G-Documents, labelled G1-G41, comprising pages 1-189 (Exhibit R1);
(d)Section 501 – Supplementary G-Documents, labelled G42, comprising pages 190-193 (Exhibit R2);
(e)Tender Bundle, labelled TB1-TB3, comprising pages 1-11 (Exhibit R3);
(f)Documents relied upon in the Respondent's updated Statement of Facts, Issues and Contentions from the summons bundle and supplementary summons bundle - SB page numbers 37, 40-41, 43-50, 73, 76, 81-82, 100-101, 141-143, 150, 155, 169, 203-205, 232, 240, 279-281, 371-372, 472, 482-486, 812, 848-849, 860-861, 899-905, 968-972, 1137-1146, 1203 (Exhibit R4);
(g)Summons bundle extracts (Exhibit R5); and
(h)Applicant's criminal record as complied by the parties (Exhibit R6).
19. The Applicant filed a Statement of Facts, Issues and Contentions (ASFIC) dated 24 January 2023, prior to the hearing. The Respondent filed an updated Statement of Facts, Issues and Contentions dated 25 January 2023 (RSFIC).
Legislative Framework
Migration Act
20. Section 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.
21. Section 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.)
22. 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.)
23. 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 90
24. 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.
25. Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
26. On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018).
27. Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with paragraph 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(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.
28. Paragraph 5.2 of Direction No 90 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. However, Australia may 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.
(5)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 8.4(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.
29. Informed by the principles set out in paragraph 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 90) must consider the primary considerations listed in paragraph 8 of Direction No 90, and the other considerations listed in para 9 where relevant (para 6 of Direction No 90).
30. Specifically, paragraph 8 of Direction No 90 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 best interests of minor children in Australia;
(4)expectations of the Australian community.
31. Paragraph 9 of Direction No 90 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
32.
Guidance as to how a decision-maker is to apply the considerations in
Direction No 90 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?
33. 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 concedes that she does not pass the character test (ASFIC, para [17]).
34. I agree that the Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act. That section provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act. A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
35. As I noted in the “Background” section above, on 6 August 2021, the Applicant was sentenced in the Perth District Court to a term of one year and 10 months’ imprisonment for the offence of “cultivate a prohibited plant with intent to sell or supply” (G5/37).
36. She has therefore been sentenced to a term of imprisonment of 12 months or more, and as a result, does not pass the character test by operation of s 501(7)(c) of the Migration Act. 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?
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 90)
37. Paragraph 8.1(1) of Direction No 90 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.
38. Paragraph 8.1(2) of Direction No 90 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 90)
39. Paragraph 8.1.1(1) of Direction No 90 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).
Overview of the Applicant’s offending and conduct
40. The Applicant has convictions in New South Wales, Victoria, the Australian Capital Territory and Western Australia.
41. The following table of the Applicant’s criminal offending was compiled by the parties to assist the Tribunal (R6). I have made some minor amendments for clarity. The following abbreviations have been used in the table:
Ctr - Centre
DC – District Court
k – Thousand
LC – Local Court
MC – Magistrates Court
m - month
NPP – non-parole period
SC – Supreme Court
y - year
| Reference | Offence date | Offence | Court date | Court | Penalty |
| 5251936 | 1 Aug 98 | Shoplifting <= $2k | 17 Sep 98 | Bankstown LC | Fine $400 |
| 4835794 | 16 Apr 99 | Larceny | 25 May 99 | Burwood LC | Recognisance 12m |
| 6981914 | 21 May 99 | Shoplifting | 19 Aug 99 | Burwood LC | Community service 30h |
| 7734779 | 14 Oct 99 | Shoplifting <= $2k | 9 Nov 99 | North Sydney LC | Fine $600 |
| 8859139 | 18 Dec 99 | Larceny <= $2k | 19 May 00 | Downing Ctr LC | Rising of the court |
| 9832918 | 3 Aug 00 | Enter inclosed land, larceny < $2k | 24 Aug 00 | Downing Ctr LC | Fine $500 + $250 |
| 10366537 | 19 Dec 00 | Larceny <= $2k | 6 Dec 01 8 Sep 02 6 Jun 03 | Downing Ctr LC Downing Ctr LC Sydney DC | Bond 2y Home detention 6m Imprisonment 1m |
| PE 6613/01 | 10 Jan 01 | Stealing | 7 Oct 14 | Perth MC | Fine $500 |
| 11526503 | 4 Mar 01 | Shoplifting | 23 May 01 | Waverley LC | Fine $3,000 |
| 11412757 | 4 Apr 01 | Shoplifting $2-5k, shoplifting <= $2k, shoplifting <= $2k | 6 Dec 01 18 Sep 02 6 Jun 03 | Downing Ctr LC Downing Ctr LC Sydney DC | Suspended imprisonment 6m Home detention 6m Imprisonment 1m |
| 14025509 | 5 Jun 01 | Goods in custody, false instrument | 31 May 02 | Parramatta LC | Home detention 6m |
| 12987177 | 4 Oct 01 | Shoplifting | 6 Dec 01 18 Sep 02 6 Jun 03 | Downing Ctr LC Downing Ctr LC Sydney DC | Suspended imprisonment 3m Home detention 3m Imprisonment 3m |
| 13143129 | 6 Oct 01 | Shoplifting <= $2k | 6 Dec 01 18 Sep 02 6 Jun 03 | Downing Ctr LC Downing Ctr LC Sydney DC | Suspended imprisonment 3m Home detention 3m Imprisonment 3m |
| 15 Oct 01 | Theft from shop | 15 Jan 01 | Melbourne MC | Fine $250 without conviction | |
| 18 Oct 01 | Equipped to steal | 15 Jan 01 | Melbourne MC | Fine $250 without conviction | |
| 13423534 | 12 Dec 01 | Larceny | 31 May 02 | Parramatta LC Sydney DC | Home detention 6m |
| 16255117 | 2 Jan 03 | Shoplifting $2-5k | 2 Apr 03 6 Jun 03 | Downing Ctr LC Sydney DC | Imprisonment 3m Imprisonment 3m |
| Ms Nguyen serves total sentence of 3 months’ imprisonment from 6 Jun 03 to 5 Sep 03 | |||||
| 84/2004 | 19 Sep 03 | Theft | 31 Jan 05 | ACT SC | Suspended imprisonment 9m |
| 20272918 | 13 Mar 04 | Shoplifting $2-5k | 30 Nov 04 | Newtown LC | Home detention 7m, NPP 2m |
| 20416625 | 21 Mar 04 | Responsible person/custodian not supply drivers particulars | 26 Jul 04 | Newtown LC | Fine $500 |
| 22479889 | 17 May 04 | Responsible person/custodian not supply drivers particulars, Not inspect drivers licence | 26 Jul 04 | Newtown LC | Fine $800 + $300 |
| 32297904 | 29 May 07 | Owner/occupier knowingly expose child to drugs etc, conceal serious indictable offence of another person | 9 May 08 | Liverpool LC | Bond 4y |
| 154629793 | 15 Jul 08 | Shoplifting $2-5k | 28 Jul 08 | Parramatta LC | Imprisonment 4m |
| Ms Nguyen serves sentence of 4 months’ imprisonment from 23 Jul 08 to 22 Nov 08 | |||||
| 37344578 | 14 Jan 09 | Shoplifting <= $2k | 24 Aug 09 10 Sep 09 | Blacktown LC Parramatta DC | Imprisonment 6m Imprisonment 6m |
| 37344578 | 8 Mar 09 | Driver not disclose identity of driver/ passenger on request | 24 Aug 09 | Blacktown LC | Conviction with no penalty |
| 39029280 | 20 Apr 09 | Shoplifting <= $2k | 24 Aug 09 | Blacktown LC Parramatta DC | Imprisonment 9m, NPP 6m Imprisonment 9m, NPP 3m |
| Ms Nguyen serves total term of 9 months’ imprisonment from 20 Apr 09 to 19 Jan 10 | |||||
| 45045770 | 11 Aug 11 | Shoplifting <= $2k | 16 Aug 12 | Downing Ctr LC | Intensive correction order 12m |
| 49331726 | 15 Aug 12 | Possess prohibited drug | 15 Nov 12 | Fairfield LC | Fine $500 |
| PE 105898/14 | 17 Sep 17 | Cultivate a prohibited plant with intent to sell or supply** | 6 Aug 21 | Perth DC | Imprisonment 1y 10m, NPP 11m |
| Ms Nguyen serves non-parole period of 11 months from 5 Dec 17 to 23 Dec 17 and 6 Aug 21 to 15 Jun 22 | |||||
** I will refer to the “Cultivate a prohibited plant with intent to sell or supply” offence as the Cultivate Cannabis Offence.
42. There is another criminal history in the materials before me in the primary name of Le, Thi Kim Thu, with an alias of Cindy Lee (G6/41-42). Ms Le was a person who the Applicant shared accommodation with before her marriage. I accept the Applicant’s evidence that she gave Ms Le’s name as her own to police on one occasion only and that she has never used the alias, Cindy Lee. I find that criminal history belongs to another person, Ms Le, and not the Applicant.
43. As can be seen from this table, the Applicant’s offences fall into two categories. The first is dishonesty offences such as shoplifting, stealing, theft from shop and larceny. The second is drug offences such as possess prohibited drug, expose child to drugs and the Cultivate Cannabis Offence.
44. The Applicant’s Visa was cancelled while she was serving a sentence of imprisonment for the Cultivate Cannabis Offence. The Applicant owned an investment property in Western Australia. She leased it to her friend (and former de-facto partner) Mr James Lee from June 2017. In September 2017 there was an explosion due to the power being diverted from the energy provider so an assessment of the amount of power used could not be detected. According to the sentencing judge, MacLean DCJ, the Applicant was not responsible for the diversion or the explosion, but it resulted in police attending the house and finding 437 cannabis plants. The sentencing Judge described it as a “sophisticated, hydroponic cannabis crop” that was “elaborate and throughout the house” (G8/46).
45. Regarding the Applicant’s involvement, His Honour stated (G8/46-50):
I’m not satisfied beyond reasonable doubt that you purchased the house so that this crop could be cultivated, but I am satisfied beyond reasonable doubt that you did become aware sometime after the construction period that the house was being used for the cultivation, and that you provided assistance by attending the house on occasion and in allowing your house to be used for the continuing cultivation.
…
It’s clear that Mr Lee was the principal offender, and was the person who undertook the constructions and undertook the cultivation within the home.
I’m not satisfied beyond reasonable doubt that you stood to gain a benefit from the sale of the cannabis, but I am satisfied beyond reasonable doubt that you assisted Mr Lee and sought to support him insofar as this enterprise went. That support did take place in circumstances of a family dynamic in which Mr Lee provided support to you and to your children who had looked to Mr Lee for parental support.
The jury’s verdict means that you knew of and assisted in bringing into existence a significant amount of a dangerous drug. And your conduct remains serious even though I’m not satisfied beyond reasonable doubt that you either had the idea to establish the crop, or were looking to receive a commercial benefit from its establishment.
…
Your role was plainly less than Mr Lee’s who was the originator if [sic] the idea, the builder of the hardware within the house and the creator and cultivator of the crops, however, the significance of your conduct is that you did aid the enterprise and allow it to continue and allowed your premises to be used in that manner, understanding that Mr Lee had commercial ambition.
46. The “owner/occupier knowingly expose child to drugs etc” and the “conceal serious indictable offence of another person” offences of 28 May 2007 occurred when the Applicant was living in New South Wales. There are no sentencing remarks before me. Some facts can be ascertained from the Police Facts sheet and the Applicant’s evidence at the hearing. Police entered a premises occupied by Mr Lee (the same Mr Lee as the Cultivate Cannabis Offence). The Applicant and her daughter, then aged five years, were at the premises. The property contained a hydroponic cannabis set up. Police found 40 cannabis plants, 20 pounds of loose cannabis inside the fridge in the main living area, 20 lamp shades, 31 electrical transformers, a power board, and an exhaust fan with filters. The entire value of the cannabis found at the property was approximately $140,000. Police stated that there were lamp shades, chemicals, fertilisers, cannabis plants and electrical leads in the house which the child, the Applicant’s daughter, had easy access to.
47. The Applicant’s evidence was that she was present at the property when the police raided it, having stayed there for one night with her daughter after she had an argument with her former husband (whom she divorced in 2014). The Police Facts sheet refers to evidence that the child was living there. It refers to the child’s school bag being in the house, there being a separate bedroom for the child and toys and children’s items throughout the house. The Applicant denied that she and her daughter were living at the house and said the school bag was there because she needed to take her daughter to school the next day. As there are no sentencing remarks and as the Applicant denies that she was living there, I do not give weight on the statement in the uncorroborated facts sheet that the Applicant and her daughter were living in the house with Mr Lee. I accept that she stayed there for a night. Nevertheless, the fact of the convictions themselves remain. This means that she did allow her child to be exposed to harmful drugs and chemicals in the house and that she knew about Mr Lee’s hydroponic cannabis set up but did not bring it to the attention of police or other authorities (SB/45-50).
48. The Applicant’s shoplifting offences were committed in the company of others. They generally involved the Applicant and one or two other persons stealing items of clothing, perfume or cologne. One person would distract shop assistants and/or act as a look out while the other person or persons stole the items. Sometimes she would steal the items, and sometimes her co-offenders would undertake the role of stealing.
49. The above table also shows several minor driving offences including not supplying drivers particulars and not inspecting drivers’ licence. In addition to these offences in the above table, the Applicant has driving infringements in Western Australia and New South Wales.
50. Her New South Wales driving infringements (SB/371-372) are:
(a)two “fail to supply information” infringements on 26 July 2004 for which she received $800 and $500 fines;
(b)“unlicensed driver/rider – previous licence expired 2 years or more – 2nd or subsequent offence in 5 years” for which she received a $923 fine, and “disobey traffic lights” for which she received a $231 fine on 3 October 2006;
(c)“exceed speed limit by more than 15 km/h but not more than 30 km/h whilst driving a motor vehicle” on 25 January 2009 for which she lost six demerit points (double demerits) and was fined $243;
(d)“exceed speed limit by more than 15 km/h but not more than 30 km/h whilst driving a motor vehicle” and “not keep left on multi-laned road” on 8 March 2009 for which she received two fines of $243 that were listed with the State Debt Recovery Office on 25 May 2009;
(e)on 27 May 2009, she was given a “demerit points suspension” of her licence from 1 July 2009 to 30 September 2009 for the 25 January 2009 and 8 March 2009 offences;
(f)“exceed speed limit by more than 15 km/h but not more than 30 km/h whilst driving a motor vehicle (school zone)” on 8 April 2009 for which she lost four demerit points and received a fine of $324;
(g)“disobey traffic lights – camera detected” on 1 April 2010 for which she lost three demerit points and received a fine of $338;
(h)“disobey traffic lights – camera detected” on 17 May 2011 for which she lost three demerit points and received a fine of $344 that was listed with the State Debt Recovery Office on 29 August 2011;
(i)“following too closely” on 15 October 2010 for which she lost three demerit points and received a fine of $344;
(j)on 31 August 2011 she was given a “demerit points suspension” of her licence from 5 October 2011 to 4 January 2012 for the 8 April 2009, 1 April 2010, 15 October 2010 and 17 May 2011 offences.
(k)on 28 October 2011 she was advised by police not to drive because her licence was suspended;
(l)“disobey left turn/ right turn/ no turns sign at intersection” on 2 April 2012 for which she lost two demerit points and received a fine of $206;
(m)“disobey traffic lights – camera detected” on 22 May 2012 for which she lost three demerit points and received a $353 fine; and
(n)“failing to give way” on 10 March 2013 for which she lost three demerit points and received a $298 fine.
51. In Western Australia, the Applicant has 19 speeding infringements (SB/812):
(a)11 for “exceed speed limit by not more than 9kmh” (between 2016 and 2021) for which the Applicant received unspecified fines;
(b)seven for “exceed speed limit between 10 and 19kmh” (between 2016 and 2022) for which the Applicant received unspecified fines and a loss of two demerit points for each offence; and
(c)one for “exceed speed limit between 20 and 29 kmh” (2013) for which the Applicant received unspecified fines and a loss of three demerit points.
52. There is also an infringement for “drive motor vehicle using hand held mobile” (2016) in Western Australia for which she received a fine and a loss of three demerit points.
53. When asked at the hearing about her New South Wales driving infringements, the Applicant stated that she could not remember if the record was accurate. When asked about her Western Australian driving infringements, she stated that it could have been her or another person driving the car. This type of answer occurred frequently throughout the Applicant’s evidence. I appreciate Dr Pattni’s opinion that the Applicant has compliant, obedient behaviours and is easily led by others. However, it cannot always be someone else’s fault that the Applicant committed offences. I found this aspect of her evidence to be unconvincing and that, on the balance of probabilities, her driving record is likely to be accurate.
Assessing the nature and seriousness of the conduct
54. The Applicant’s offences do not fall within the types of crimes or conduct described in Direction No 90 as being “very serious” (para 8.1.1(1)(a)) or “serious” (para 8.1.1(1)(b)). However, the conduct described in those sub-paras is not exhaustive, and the Tribunal has previously recognised that other types of offences can be categorised as “very serious” or “serious”.
55. The Tribunal has previously recognised the harmful effects of drugs on the community (see, for example, Senior Member Cameron in SCJD and Minister for Home Affairs [2018] AATA 4020 at [81]–[83]). The sentencing remarks for the Cultivate Cannabis Offence refer to some of the harms and to the offence as being “serious” (G8/48 and 50).
56. This Tribunal has often regarded driving offences as being serious (see Senior Member Poljak in Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 at [20]). The Applicant’s driving offences and infringements are of a less serious nature than many driving offences. For example, they do not involve reckless or dangerous driving or driving whilst under the influence of drugs or alcohol. They are, however, numerous and frequent, and had the potential to put other innocent road users at risk. They suggest a disregard for road rules.
57. The Applicant’s dishonesty offences, such as her shoplifting offences, are of a less serious nature. Again, their frequent and repeated nature suggests a disregard for the law.
58. The Applicant has received fines, demerit points and disqualifications for her driving offences. Between 1998 and 2001, she received more lenient penalties for stealing, shoplifting and larceny offences such as fines, community service, suspended imprisonment, and home detention. Imposing penalties such as fines and community service tends to suggest that the offending is less serious. Forms of detention, such as home detention are, in my view, slightly more serious. I note that the penalty imposed for the “owner/occupier knowingly expose child to drugs etc” and the “conceal serious indictable offence of another person” offences of 28 May 2007 was a four-year good behaviour bond. This is indicative of a far lesser degree of seriousness than if the court had imposed a custodial sentence of imprisonment.
59. She was subsequently sentenced to three short terms of imprisonment. On 2 April 2003, the Applicant was sentenced to a total term of three months’ imprisonment which was the total effective sentence for several shoplifting offences. On 28 July 2008, she was sentenced to four months imprisonment for the “shoplifting value >$2,000 & <=$5000” offence. On 24 August 2009, the Applicant was sentenced to a further term of nine months which was the total effective sentence for further shoplifting offences. Imposing sentences of imprisonment are usually a last resort in the sentencing hierarchy (PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22]), and so these short sentences do reflect that the courts thought the offences serious enough to impose detention or custodial sentences, even though they were of short duration. This was likely to be because of the repeated and cumulative nature of these offences. Then on 6 August 2021, the Applicant was sentenced to one year and 10 months’ imprisonment for the Cultivate Cannabis Offence with a non-parole period of 11 months. Although the maximum penalty is 10 years and/or a fine of $20,000, I am of the view that this term nevertheless reflects that the Court regarded the offence as being serious (para 8.1.1(1)(c) of Direction No 90).
60. I now turn to the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 90). As the above summary shows, she has committed numerous and frequent driving/ traffic related offences at the less serious end of the scale of those types of offences. As shown in the table reproduced above, the Applicant has also committed approximately 20 offences between August 1998 and January 2003. She offended again on 19 September 2003 with another “theft” offence shortly after being released from her first term of imprisonment. Up until 15 July 2008 she committed approximately seven more offences (including three driving offences). She then went to prison from 23 July 2008 until 22 November 2008. After being released from prison on 22 November 2008, she offended again on 14 January 2009 with another shoplifting offence, and committed another driving and a further shoplifting offence between that time and 20 April 2009. After finishing another prison sentence on 19 January 2010, she committed another shoplifting offence on 11 August 2011, and a possess prohibited drug offence on 15 August 2012. There was a break in her offending after this 15 August 2012 offence for approximately five years until 17 September 2017, being the date of the Cultivate Cannabis Offence. It can be concluded that the Applicant’s offending is frequent, and she has repeat dishonesty offences which were not deterred by fines and other penalties as well as sentences of imprisonment. Her history of offending is consistent, until the Cultivate Cannabis Offence which is her most serious offence.
61. I also consider that there would be a cumulative effect of repeated offending given the number of offences committed, numerous court attendances and several custodial sentences of imprisonment. This would have had the effect of burdening the resources of police, the courts and corrective services which are ultimately funded by the taxpayer (para 8.1.1(1)(e) of Direction No 90).
62. The Applicant has failed to disclose her convictions on incoming passenger cards after two previous trips to Vietnam. When she returned on 19 July 2001, she ticked the box marked “no” in response to the question, “do you have any criminal conviction/s?” (G11/59). When she returned on 28 March 2002 from another trip, she ticked a similar box on an incoming passenger card written in Vietnamese language (G12/60). When asked about this at the hearing the Applicant admitted she provided the incorrect information, said she was sorry and that she did not realise how serious the consequences of not providing the correct information would be (para 8.1.1(1)(f) of Direction No 90).
63. The Applicant has reoffended after being formally warned on two occasions (para 8.1.1(1)(g) of Direction No 90). On 21 November 2013 the Department of Immigration and Border Protection notified the Applicant that they were considering cancelling the visa she was on at that time (a Class WA subclass 010 Bridging A visa) on character grounds under s 501(2) of the Migration Act. A delegate decided not to cancel the visa and gave the Applicant the following formal warning (G16):
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in the future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
(Original in bold type.)
64. The Applicant signed to acknowledge receipt of this notice on 25 February 2014 (G17/80).
65. She was sent a “formal counselling letter” on 23 May 2008 (that was also sent to her representative at that time) (TB2). The Applicant’s offences came to the Department’s attention as part of her application for a Partner (Residence) (Class BS) visa. The letter stated:
The purpose of this letter is to warn you that if you engage in any further conduct that comes within the scope of subsection 501(6) [of the Migration Act] could result in the consideration of the cancellation of your visa or refusal of your application under s 501 of the [Migration] Act. I note that the consequences of visa cancellation under s 501 of the Act may include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.
(Original in bold type.)
66. Offending after receiving these warnings weighs against the Applicant.
67. As I have explained above, the Applicant’s offences range from those of a less serious nature such as less serious driving offences (and infringements) and dishonesty (such as shoplifting and larceny) offences that were dealt with by way of fines, through to more serious and repeated shoplifting offences for which she received short prison sentences. Her most serious offence was her most recent, being the Cultivate Cannabis Offence. This seriousness is reflected in the sentencing comments and the term of imprisonment imposed. Her offending is frequent, although there is no overall trend of increasing seriousness until the Cultivate Cannabis Offence. There was also a five-year break in her offending before this offence. She continued to offend after prison sentences and after receiving two formal warnings from the Department. After balancing these factors, I would categorise the Applicant’s offending as having a low to moderate level of seriousness, and the Cultivate Cannabis Offence as serious.
68. For these, and the other reasons that I have outlined above, I find that paragraph 8.1.1 of Direction No 90, 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 90)
69. Paragraph 8.1.2(1) of Direction No 90 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.
70. Paragraph 8.1.2(2) of Direction No 90 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 90)
71. 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 90).
72. Dishonesty offences involving theft can cause financial harms in the form of increased costs to the community including increased insurance premiums and psychological distress to victims.
73. The harms that can result to members of the public (including innocent road users and pedestrians) from driving/ traffic related offences are potentially very serious, and include physical injuries or loss of life, and possibly psychological harm.
74. The harms of cannabis related offending on the community were outlined by the sentencing Judge for the Cultivate Cannabis Offences as follows (G8/50):
Cannabis and its trade poses a serious threat to society by way of the continuing prevalence of it. There’s a clearly demonstrated connection between the use of cannabis and mental illness. There’s a demonstrated connection between cannabis use and a progression to harder drugs.
75. In summary, the nature of the harm if the Applicant were to commit further drug offences is varied. Purchasing and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs in the community causes harm to the community on many levels, including drug related crimes such as violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families. Should the Applicant commit more drug offences, the harm that could result could be very serious.
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 90)
76. 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 90).
77. The Applicant has a lengthy criminal history in New South Wales, Victoria, the Australian Capital Territory and Western Australia. She has continued to offend with similar dishonesty offences despite receiving prison sentences, and she has reoffended shortly after being released from prison. She has failed to comply with previous court orders. For example, the Applicant was subject to a good behaviour bond when she committed larceny on 31 May 2002. On 12 December 2001 the Applicant’s bail was refused because the authorised officer regarded her to be a recidivist offender who continues to commit further offences after previously receiving leniency of the court (SB/155). On 8, 10 and 13 September 2004 she failed to report to the police station in breach of her bail agreement (SB/849). She breached her home detention conditions on numerous occasions (SB/82) and had bail refused again on 24 July 2008 because she had previously failed to attend court in accordance with a bail undertaking (SB/169). The Applicant has also reoffended after receiving two formal warnings that her visa may be cancelled if she committed further offences. This history of offending, non-compliance with court-imposed orders, and the lack of deterrence of formal warnings suggests there is some likelihood of future reoffending.
78. The Applicant has, however, had a five-year gap in her offending after 15 August 2012 until the Cultivate Cannabis Offence on 17 September 2017. She moved to Perth in 2013 and started a deli business with financial assistance from her parents. This seemed to be a turning point for the Applicant because she had removed herself from negative friends in Sydney whom she had shoplifted with. No longer associating with these friends and running her business had a positive impact on the Applicant because her shoplifting, which could be described as habitual, stopped entirely. This suggests that if the Applicant was returned to the Australian community, she would make positive use of her time by running her business and that there is a very minimal likelihood of her committing any further shoplifting offences.
79. Further, when sentencing the Applicant for the Cultivate Cannabis Offence, the sentencing Judge, MacLean DCJ, found that the Applicant was a low risk of ever reoffending. His Honour’s comments also indicate that the Applicant had been compliant with supervision in the community over several years (G8/52-53):
And I do accept that these proceedings have been a number of years in their conduct, and that during the life of these proceedings there’s been no suggestion of any misconduct or criminality on your part, and that the length of the supervision, together with the fact that you appear before the court as, for these sentencing purposes, an absolute first offender suggests, and I do find as a fact, that you are a low risk of ever offending again.
(My emphasis.)
80. In addition, the Applicant has a treating psychologist, Dr Pattni. Dr Pattni has been providing counselling to the Applicant since 2018 for the more immediate issue of helping her through the “legal crisis” of her court and tribunal proceedings. In her report dated 26 September 2021, Dr Pattni outlined some positive behavioural changes that the Applicant had been able to make during her counselling sessions including maintaining a good record of compliance with her court orders and ensuring she does not breach them (G26/131).
81. These judicial findings, and Dr Pattni’s observations, suggest that the Applicant has demonstrated a willingness and ability to comply with court-imposed orders and supervision. This change of behaviour is a protective factor which suggests a reduced likelihood of reoffending.
82. The Applicant was also granted parole by the Prisoners Review Board of Western Australia (PRB) on 16 June 2022 and was transferred to immigration detention upon her release. In their reasons for decision, the PRB noted that the Applicant had been “assessed as a low risk of reoffending” (A1). The PRB also noted her “positive prison conduct”. Regrettably, the Respondent failed to request a summons issue to the Department of Justice and so none of the Applicant’s prison or parole records are before me. The reference to the Applicant having been “assessed” suggests to me that a formal assessment was undertaken when she went to prison which assessed her as a low risk of reoffending (which was referred to by the PRB in their reasons).
83. Dr Pattni also assessed the Applicant as being a low risk of recidivism (G26/128). The Respondent expressed concerns that Dr Pattni was not a forensic psychologist, that she did not have a detailed understanding of all the Applicant’s offences, and that she has a personal relationship with the Applicant which may affect her judgment. I acknowledge these limitations and note that Dr Pattni would like a favourable outcome for the Applicant because she believes it to be in the best interests of the mental health of the Applicant and her children. However, Dr Pattni has had the advantage of observing the Applicant over a period of approximately five years and she has built up a relationship of trust and confidence with the Applicant. I also observe that Dr Pattni’s assessment of risk is consistent with that of the sentencing Judge and the PRB. This gives weight to Dr Pattni’s opinion.
84. Also, if she is released into the Australian community, the Applicant will be subject to parole conditions, requirements and supervision including attending programs and counselling as directed until 17 May 2023. This supervision and the conditions of parole will provide her with structured support to help her reintegrate into the community.
85. As discussed above, in their reasons for decision, the PRB noted the Applicant’s “positive prison conduct” which would have been ascertained from a prison report that was prepared for the PRB. Again, it is disappointing that the Respondent did not request a summons issue to the Western Australia Department of Justice for these records. The Applicant’s psychologist, Dr Pattni, wrote an “updated progress report” regarding the Applicant dated 20 June 2022. It states (G27/136):
[The Applicant] has been receiving support from her case worker with corrective services. During her incarceration she has made every attempt to work on herself, support others and was considered almost like a “role model”. She has worked consistently in the kitchen and tried to be useful at most times. She has also tried to work on her English and keep herself busy, including regularly going for the exercise program that was offered. …
86. Although Dr Pattni’s observations are likely to have been informed by self-reporting from the Applicant, they are uncontested and supported by the PRB’s reference to her positive prison conduct. I therefore accept that the Applicant’s behaviour in prison was positive, which is to her credit.
87. The Applicant has never had any issues with drug or alcohol addiction, which is often a risk factor for reoffending. Although the Applicant has disassociated from negative peers in Sydney associated with her dishonesty offences, it is of some concern that she maintains contact with Mr James Lee who was responsible for the cannabis hydroponics set-up in the Applicant’s investment property. Mr Lee also maintains contact with the Applicant’s children. There is a complicated history with Mr Lee. The Applicant felt indebted to him and tried to protect him because he was very supportive of her and the children and helpful to them in the past. For example, when she was in prison, Mr Lee would drive her children to and from school every day, even though he did not live close by. Mr Lee effectively became a member of her family and a father-figure to her children. Currently, he checks on her children regularly and helps her daughter order goods for the deli. I believe that the Applicant’s likelihood of reoffending would be further reduced if she did not have contact with Mr Lee. Mr Lee was operating a cannabis grow house in Sydney when the Applicant was charged with the “owner/occupier knowingly expose child to drugs etc” and the “conceal serious indictable offence of another person” offences and another cannabis grow house from the Applicant’s investment property which resulted in the Cultivate Cannabis Offence. His presence in the Applicant’s life is not a protective factor.
88. The Applicant has dedicated herself to counselling sessions with Dr Pattni since 2018, including 18 sessions in 2018, 15 sessions in 2019 and 23 sessions in 2020 up to September 2021. She has continued to have regular sessions approximately every fortnight. The Applicant plans to continue to see Dr Pattni if she is released into the Australian community.
89. It was Dr Pattni’s opinion that the Applicant is suffering from “extremely severe depression and anxiety and severe stress”. At the hearing Dr Pattni confirmed that the Applicant had not yet had the opportunity to have treatment for these underlying psychological issues because Dr Pattni has been providing support with the most immediate crisis for the Applicant, being coping through her legal proceedings. However, Dr Pattni has been working to a treatment plan for the Applicant involving cognitive behavioural therapy, and the Applicant has made some gains from this treatment. For example, in a report dated 3 August 2021, Dr Pattni observed that the Applicant had compliant, obedient behaviours, that she was easily led by others and lacked skills in making decisions (G25/126). However, in a report dated 26 September 2021, Dr Pattni confirmed that she had been working with the Applicant since 2018 to target these risk factors and that the Applicant had made gains in making responsible decisions, working within legal requirements, and having healthier relationships. These gains, together with the Applicant’s commitment to ongoing counselling with Dr Pattni will provide her with further support to assist her to make good decisions and to reintegrate into the community.
90. The Applicant feels deep remorse, guilt, and shame for the impact of her offending on her two adult children and her parents. Her children are suffering from mental health issues and are receiving regular counselling from Dr Pattni. Her son has expressed suicidal ideation on numerous occasions. Her daughter has had to put her studies on hold to run the deli business which pays the mortgages on all the properties and is under extreme stress. The Applicant’s parents have sold their assets in Vietnam and have contributed to the purchase of the Applicant’s deli and towards her purchasing three properties. The State of Western Australia has applied to confiscate all these properties because the Applicant has been declared a drug trafficker. The Applicant has applied to the Supreme Court to protect her parent’s investments in these properties. She fears all her parents’ life savings will be lost if the properties are confiscated. The Applicant has also had difficulty coping with separation from her children while she has been in prison and immigration detention. The Applicant’s appreciation of the impact of her offending on her family, and her fear of being separated from them if she is returned to Vietnam, are likely to provide her with motivation not to reoffend.
91. In a statement dated 22 April 2008, the Applicant said that she was a “changed woman” and that she was “very regretful” for her past actions (TB1, para [24]). She then committed numerous further offences. In a statement dated 5 December 2013, the Applicant promised never to reoffend and again said she was a changed person. She also referred to having to care for her two children (G39), and yet she reoffended by committing her most serious offence, being the Cultivate Cannabis Offence. It is a concern that the Applicant has claimed to be sorry for her offending in the past, and that she has subsequently committed further offences. What may have changed from those times, however, is that the Applicant has had access to psychological support from Dr Pattni from 2018. Prior to that time, she had not been provided with any meaningful treatment or programs to address her psychological issues or her offending.
92. The Applicant has submitted character references from nine people in her local community in support of her staying in Australia. They do not show a knowledge of the Applicant’s offending and do not detail any support that the writers are willing to offer if she remains in the community. Each of the character referees have known the Applicant since before she committed her offences, but she offended whilst having these persons in her life. I find that these character references are more relevant to and indicative of the Applicant’s ties to the Australian community and so I have considered them there.
93. At times it seemed that the Applicant did not take responsibility for her offending at the hearing. She often blamed others. For example, she blamed the influence of negative peers for her shoplifting offences. I acknowledge Dr Pattni’s advice that the Applicant is easily led and has compliant, obedient behaviours which provides some corroboration to this evidence from the Applicant. As I mentioned above, when asked about her driving offences she suggested that another person could have been driving the car. She did not seem to fully comprehend what she had done wrong to be convicted of the Cultivate Cannabis Offence. She repeatedly explained that she lied to the police when asked about Mr James Lee’s whereabouts. She did not appear to understand that she had knowledge of the operation and had failed to inform police. Having insight into her offending would be a further protective factor that would reduce the likelihood of reoffending.
94. In the overview of the Applicant’s offending above, I made a finding that a criminal history in the name of Le, Thi Kim Thu, did not belong to the Applicant. At the hearing the Applicant was also asked about other aliases listed on her own criminal history and whether she had used other names and dates of birth (transcript/71-72). There are seven aliases listed on the Applicant’s criminal history. As I mentioned above, she admitted to using Ms Le’s name and date of birth on one occasion (transcript/79). She said that the police sometimes wrote her names in a different order (transcript/74). Those names, as they appear on her criminal history, are all variations of her name. Each time Nguyen is the last name, and each time Phuong appears as a first or middle name. Five out of seven times Mai is listed as a first or middle name in different orders. Also, some of the records the Applicant was taken to at the hearing in the name of Ms Le, appeared to me not to belong to the Applicant. I find that it is plausible, from the way the names appear in the list of aliases, that police did write different variations of the Applicant’s name. However, even if the Applicant has used aliases in the past, I do not think there is any discernible correlation between the use of aliases and any likelihood of reoffending.
95. In summary, there are factors that suggest some likelihood of reoffending. These include:
(a)The Applicant’s lengthy criminal history, the frequency of her offending, the fact that she has not been deterred by terms of imprisonment or two prior warnings that her Visa may be cancelled if she committed further offences.
(b)Her reoffending after expressing regret and stating that she was a changed woman.
(c)Her continuing relationship with Mr James Lee.
(d)She has not fully taken responsibility for her offending and has a limited understanding of what she did wrong with respect to the Cultivate Cannabis Offence.
(e)She has had financial support from her parents, including her parents helping her to purchase a deli business and to invest in property, but she committed the Cultivate Cannabis Offence.
(f)Being the provider for her children and her close relationship with her children has not prevented her from reoffending in the past.
96. There are some protective factors that may reduce the Applicant’s likelihood of reoffending. These include:
(a)The five-year gap in the Applicant’s offending after she moved to Perth in 2013 (including no further shoplifting offences which were previously habitual), and her disassociating from the negative peers she shoplifted with.
(b)The sentencing Judge, the PRB and Dr Pattni’s assessment that the Applicant is a low risk of reoffending.
(c)If released into the community the Applicant will be subject to parole conditions, requirements and supervision until 17 May 2023 which will assist her to reintegrate into the Australian community.
(d)The Applicant’s positive prison conduct and work ethic. If returned to the community she will be able to make meaningful use of her time by working in the deli business.
(e)The Applicant’s commitment to attend ongoing counselling with Dr Pattni in the community and the comprehensive treatment plan they have developed.
(f)The Applicant’s appreciation of the negative and detrimental impact her offending, incarceration, cancellation of her Visa and her time in immigration detention have had on her two adult children, her fears for their wellbeing and of being permanently separated from her children if she is returned to Vietnam.
(g)The Applicant’s remorse for the impact of her offending on her parents who may lose the money they have invested in her business and properties if they are confiscated by the State of Western Australia.
97. Overall, my view is that there is a low risk of the Applicant committing further dishonesty offences, as well as a low risk of her committing any drug-related offending. I find that the risk of the Applicant committing misdemeanour-type traffic offences is likely to be moderate.
98. The Respondent has submitted, in reference to the principle in para 5.2(5) of Direction No 90 and given the harm that can be caused to the community by cannabis that even a low risk of the Applicant reoffending is unacceptable. This submission was referring to the Applicant’s Cultivate Cannabis Offence. I am not of the view that the Applicant’s conduct falls within this category because she was not the person who installed and was running and profiting from the enterprise. She lied to police and did not inform them of the enterprise when she became aware of it. The offence is serious, but not so much so as to fall into the unacceptable category.
99. I therefore find that paragraph 8.1.2 of Direction No 90, being the risk to the Australian community should the Applicant commit further offences, weighs moderately against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 90
100. I have found that paragraphs 8.1.1 and 8.1.2 both weighed moderately against revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs moderately against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 90)
101. Paragraph 8.2 of Direction No 90 requires decision-makers to have regard to family violence committed by the non-citizen.
102. At the hearing the Applicant was taken to a police incident report regarding an incident on 3 November 2006, where the Applicant’s name and date of birth were stated as the person of interest (SB/848). The incident report stated that a teacher at a child’s school noticed red marks on a male child’s legs. Case workers from the Department of Children’s Services removed the child or children (the report refers to both, but it is unclear whether one or more children were removed) and placed into temporary foster care.
103. The Applicant’s evidence at the hearing was that it was not her child and that her daughter did not attend school in that suburb (transcript/31). Her evidence was that she had never hit her children and they had never been taken into care. This was confirmed by her daughter in her evidence at the hearing. The record refers to a male child, and at that time, the Applicant’s son was only two years old and would not have been at school.
104. I find that the person of interest was not the Applicant and that this record relates to another person. There is no other evidence to suggest that the Applicant has committed any family violence.
105. Therefore, this primary consideration is not applicable.
The best interests of minor children in Australia affected by the decision (paras 8(3) and 8.3 of Direction No 90)
106. Paragraph 8(3) of Direction No 90 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration.
107. Direction No 90 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 8.3 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.
108. Paragraph 8.3(4) of Direction No 90 sets out the factors that the decision-maker must consider:
(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.
109. The Applicant has a 15-year-old niece and a 10-year-old nephew who live in New South Wales. They are the children of the Applicant’s sister, TM (G20/96). The Applicant has not made any specific claims about the impact of non-revocation of the Cancellation Decision on these children. There is no other information before me regarding these children upon which I can assess their best interests. I therefore find this consideration to have neutral weight.
Expectations of the Australian community (paras 8(4) and 8.4 of Direction No 90)
110. A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
111. These expectations are set out in paragraph 8.4 of Direction No 90, 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.
112. I must give effect to the “norm” stipulated in paragraph 8.4(1) of Direction No 90, 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. She has numerous offences involving dishonesty (shoplifting, theft, larceny), and the Cultivate Cannabis Offence. Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.4(1) and 8.4(4) of Direction No 90).
113. As is evident from the reference to the “norm” in paragraph 8.4(1) of Direction No 90, I am being told unequivocally what the community’s expectations are. Further, paragraph 8.4(4) of Direction No 90 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.
114. In this regard, 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). 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.)
115. Further detail about the Australian community’s expectations with respect to certain types of conduct is given in paragraph 8.4(2) of Direction No 90. 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 8.4(2)(a)–(f). The Applicant’s offending does not fall within those categories of conduct.
116. Paragraph 8.4(3) of Direction No 90 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. I found above that the Applicant is likely to pose a low risk of dishonesty and drug-related reoffending (and a moderate risk of misdemeanour-type traffic offences), but the community’s expectations as stated apply regardless.
117. Further, paragraph 8.4(4) of Direction No 90 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.
118. I am guided by the principle in 5.2(4) of Direction No 90. The Applicant arrived in Australia when she was 19 years old, and she is now 43 years of age. I therefore find that the Australian community would have a higher level of tolerance for the Applicant’s conduct because she has lived in the Australian community for approximately 24 years, being almost the whole of her adult life.
119. Accordingly, I find that paragraph 8.4 of Direction No 90, being the expectations of the Australian community, weighs moderately against the revocation of the Cancellation Decision.
Other considerations (para 9(1) of Direction No 90)
120. Paragraph 9(1) of Direction No 90 provides:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
International non-refoulement obligations (paras 9(1)(a) and 9.1 of Direction No 90)
121. I am required to consider Australia’s international non-refoulement obligations as one of the other considerations provided for by Direction No 90 (para 9.1 of Direction No 90).
122. Paragraph 9.1(1) defines a “non-refoulement obligation” and the source of that obligation in international law:
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. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
123. The Applicant has not raised any non-refoulement claims for consideration, nor do any issues of non-refoulement arise on the material before me. I therefore find this consideration not to be applicable.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 90)
124. Paragraph 9.2(1) of Direction No 90 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.
125. The Applicant came to Australia when she was an adult of 19 years of age. There are no language or cultural barriers that would impede the Applicant if she is removed to Vietnam. The Applicant’s movement records also indicate that she has regularly travelled back to Vietnam including flights in 2001, 2002, 2008 and 2011 (G10).
126. The Applicant is now 43 years of age. She has no known physical health issues. As I mentioned above, it is her treating psychologist, Dr Pattni’s opinion that the Applicant has “extremely severe depression and anxiety and severe stress”. The Applicant has been undergoing counselling sessions with Dr Pattni since 2018 (G25/124). At the hearing Dr Pattni confirmed that she had been helping the Applicant through the “legal crisis” of her court and tribunal proceedings, but that the Applicant had not yet had the opportunity to have treatment for her underlying psychological issues.
127. The Applicant is extremely focused and distressed about the welfare of her two adult children who are both suffering from mental health issues because of their mother’s situation. All of them have received extensive ongoing counselling from Dr Pattni. The Applicant and her children are “strongly interdependent” (G26/133). Dr Pattni has observed that the Applicant’s “suicidal ideation is deterred only because of her commitment to her children” (G25/124). In her statement dated 24 January 2023, the Applicant stated (A1, para [40]):
I am scared about the effect my deportation would have on [my daughter] and [my son]. I know that I will not be able to live if I am forced to return to Vietnam. I have told Dr Pattni that I would rather commit suicide and die then [sic] return to Vietnam where I have nothing and nobody.
128. After hearing the Applicant’s evidence and observing her in the witness box, and after hearing and considering the evidence of Dr Pattni, I believe this to be an honest statement. I am therefore concerned that if the Applicant is separated from her children by being returned to Vietnam, that she would be a suicide risk.
129. Additionally, I do not, however, have any information before me, regarding medical support available to citizens of Vietnam, which given the Applicant’s significant ongoing mental health issues and suicidal ideation, is of concern. Even if the Applicant were not to follow through on her suicidal ideation, she would remain at risk if returned because her mental health is likely to significantly deteriorate if she is returned to Vietnam. I do not have adequate evidence to suggest that she would be able to access adequate mental health treatment if returned there.
130. Given her mental health issues, it is likely that the Applicant would not be able to establish and maintain basic living standards (in the context of what is generally available to other citizens of Vietnam) if she is returned there. Although she has a history of being a hard worker and a good provider for her children, with experience as a business owner (including her own nail salon business and a deli business), her mental health issues if she is returned, are likely to be an impediment to her ability to find and maintain employment.
131. The Applicant has an aunt and three uncles in Vietnam (G20/98). It is unclear as to whether she has kept in contact, or has any relationship with them. Her evidence was that she does not know anyone in Vietnam (A1, para [34]), and that her parents have sold all their assets in Vietnam because they want to continue to reside in Australia (having come to Australia on tourist visas in 2017). They have provided her with financial support in the past, including giving her money towards purchasing two businesses and properties. However, I am uncertain as to whether they would be willing to extend further support in the future because the assets they have financially contributed to for the Applicant have now been seized due to the Applicant being declared a drug trafficker.
132. Even though there are no language or cultural issues and despite the Applicant having some family in Vietnam, I find that there are likely to be significant impediments that the Applicant would face establishing herself in Vietnam and maintaining basic living standards. This is particularly due to her mental health issues which are likely to further deteriorate if she is returned and her risk of suicide if separated from her children.
133. Consequently, I find that this consideration weighs strongly in favour of revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 90)
134. Paragraph 9.3(1) of Direction No 90 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.
135. 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). As the Applicant’s offending primarily consists of dishonesty offences, and the Cultivate Cannabis Offence, there are no apparent victims whose interests require separate consideration. I therefore find this other consideration not to be applicable.
Links to the Australian community (paras 9(1)(d) and 9.4 of Direction No 90)
136. Paragraph 9.4 of Direction No 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
137. This requires consideration of the strength, nature and duration of an applicant’s ties to Australia and the impact of non-revocation of a cancellation decision on Australian business interests.
Strength, nature and duration of ties to Australia
138. Paragraph 9.4.1(1) of Direction No 90 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.
139. Further, paragraph 9.4.1(2) of Direction No 90 provides that:
(2)Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
140. As I mentioned above, the Applicant arrived in Australia as an adult when she was 19 years of age. She has therefore resided in Australia for approximately 24 years, being most of her adult life.
141. The Applicant was convicted of her first offence within one month after her arrival in Australia on 3 July 1998. The offence was “Shoplifting value < = $2000” (G5/40; SB/41).
142. She has, however, made many positive contributions to the community. As a business owner, including of a deli where she worked from 5am in the morning to 9pm at night (G28/140; G29/142), she has employed others and has paid taxes (G20/101). The Applicant’s daughter stated that (G28/140):
My mum is a hard-working and kind-hearted person. If anyone was in need she would always help out in any way she could. If a customer asked for credit she would always say yes. Mum would regularly send money to Vietnam to help the children’s orphanage, donate money to charities and children’s hospital. She is always willing to help others in the community.
143. Several support letters/ character references also mention the Applicant’s contributions to the community (A2).
144. One of her former employees, SV, who has known the Applicant for eight years and who is now a friend stated that she was an “excellent employer” and a “sincere and kind-hearted person” who was “always there for me when I needed support”. SV stated that “on a number of occasions” the Applicant bought SV’s children shoes and clothes without having been asked.
145. Another friend who was first a customer and who has known the Applicant for four years, stated in a letter of support dated 9 January 2023 that the Applicant had offered him a lift home, and that she would cook him Vietnamese food to take home. He described the Applicant as having “compassion and kindness for others” and as being “well loved in the community”.
146. Another friend who was also initially a customer at the Applicant’s deli, and who has known the Applicant for approximately nine years, stated in a character reference dated 10 January 2023 that:
She is a kind-hearted and genuine person, who always went out of her way to help others. I will never forget the time when [the Applicant] closed her shop just to drive me to the doctors after as I was feeling so unwell to the extent where I couldn’t drive.
147. In a “support letter” dated 9 January 2023, the Applicant’s friend of 10 years, TT, stated that she did charity work with the Applicant when they were both living in Sydney to help less fortunate people in the community. TT stated that after the Applicant moved to Perth, she would send money to TT to give to Sydney based charities because the Applicant was no longer there to help.
148. In a “confirmation of support” letter dated 10 January 2023, NE, who has known the Applicant for eight years stated that the Applicant:
… is well known for providing meat and deli goods to the community without accepting money from them especially if she knew that the family was struggling financially. For those simple acts of love and care she has become a respected person of our small community.
149. Another character reference dated 10 January 2023 from TN who has known the Applicant for eight years, stated that the Applicant:
… has always been the type of person to go out of her way to help others, and it is something that I admire about her very much. Any time that I needed, she would always lend me a helping hand such as the time where she helped to lend me money to pay for my bills and groceries.
150. Although the Applicant started offending shortly after arriving in Australia, I find that more weight should be given to her positive contributions which are numerous.
151. The number of character references the Applicant has provided show that she has very strong ties to the local community where her deli is located, with many of her customers becoming friends of many years.
152. The Applicant’s assets have been seized because she has been declared a drug trafficker and she is trying to pursue legal avenues to have her property released. Nevertheless, the Applicant’s deli business and the properties she owns in Perth are indicative of her ties to the Australian community.
153. All the Applicant’s immediate family members are in Australia. Her parents have been in Australia since 2017 when they arrived on tourist visas. The Applicant’s evidence was that her parents were being sponsored by herself and her sister to stay in Australia, but the processing of their visas had stopped to await the outcome of the Applicant’s legal issues. Although they are currently a link to Australia because they are presently located here, they are not persons who have a permanent right to remain in Australia at this time.
154. The Applicant’s two sisters reside in Australia. One of them is an Australia citizen, and the other has married an Australian citizen and has applied for a partner visa (transcript/170). The Applicant also has a cousin in Australia (G20/98).
155. The evidence before me shows that the Applicant has an extremely close relationship with her two Australian citizen adult children, an 18-year-old son (N) and a 21-year-old daughter (D), having always been their primary caregiver. N and D do not have any involvement with their father. They have been under considerable stress since their mother was first charged and taken into custody in 2017. At that time D was 16 and N was 13. This was when their grandparents, the Applicant’s parents, came to Australia to help look after them. However, the Applicant’s parents cannot work due to their visa status and cannot drive. This means that considerable responsibility has been placed on D who is the only member of the family who can drive. D works as a dental assistant and is also working in and trying to run the deli business to try to keep the business going and to make sure the family has enough money to pay the mortgages on the properties. However, she is “struggling”, and the strain has impacted her mental health. The role that D has had to undertake as a provider for her grandparents, brother and mother has also affected her ability to study and pursue her dream of becoming a dentist (G28/140; G29).
156. A letter to the Department from the Applicant’s son, N, dated 21 September 2021, gives some insight to the impact of his mother’s situation on him (G30/144):
When my mum was charged and sentenced to one year and 11 months imprisonment with a non-parole period of 11 months, I thought it was the end of the world to me. All my life I have never lived a day without my mum. She takes care of our family, she cooks, and she provides love and support. Now that she is in prison, I feel like there is a crucial part of me that’s gone and no one or nothing can replace. There was nothing I could do but hope that time will pass quickly so that my mum would be released and she would come back home to me and my sister.
Unfortunately, not long after my mum was sentenced, the Department of Home Affairs decided to cancel her permanent visa. With the cancellation of her visa, her chance of being released to the community, to home with us is very thin. The cancellation of her visa means that she will be forced to return to Vietnam and she is banned from Australia permanently. I will not be able to see my mum again unless I go to Vietnam to live with her. This has caused me a lot of stress and anxiety. I have never imagined my life without my mum presence. Approaching my last year of high school, I am now not sure if I can cope because of the uncertain future of our family. My sister has to work 2 jobs since my mum got sentenced. She is struggling to manage the business of my mum and her own job. Our family is in distress and personally I do not feel mentally well.
(As original.)
157. The Applicant’s view is that “I think [N’s] life is on hold while he waits to find out what is happening to me” (A1, para [25]). I find that is likely to be an accurate assessment, as the following passage from a report of Dr Pattni dated 9 September 2022 (G37) explains:
N has obvious presentations which impact his future and his mental health. … he is struggling with managing several things important for his future and himself, including school. He reported that he is no longer doing the “Atar” subjects he was enrolled in and barely coping with his present workload. He reported feeling demotivated and very depressed. Most days, he reported, he does not want to get out of his room and bed. He skips meals, isolates himself and withdrawn [sic]. He participates in no activities and barely manages the required workloads at school. Of concern was his reporting of feelings like it was not worth living (suicidal ideation) and the frequency of having those thoughts and of feeling detached are of real concern. These thoughts have become more prevalent with time and increased with the uncertainty of his mother’s future. He struggles to sleep and feel rested and consistently concerned and worried about what will happen to his mother. There was noted concern of how any decision for Phuong (his mother) would have a consequential impact on N and this could include extremely severe depression and risk of escalated sense of hopelessness and suicide ideation.
…
He is intensely missing his mother and feels helpless with experiencing a sense of grief and loss. He has lost most interest in things he was doing in his life with friends and school before his mother’s sentencing and had continued to have hope about her release date. With her recent move to the detention centre his sense of hopelessness has increased and impacting the state of his mental health for the worse.
158. I note that N’s uncertainty about not being able to cope without his mother came to fruition. He did not complete his year 12 studies and is currently not studying or working. He is withdrawn and reclusive and spends most of his days playing computer games.
159. Dr Pattni also made the following observations about D in her report dated 9 September 2022:
D has been trying to manage her work as a dental nurse (and she only graduated last year) and her mother’s business (that generates the income needed for their living costs). She reported her sense of extreme exhaustion and wanting to give up. She reported how there are days when she feels she will just collapse and cannot stop worrying about the future of her mother. She reported that it was too “frightening” and she rather just avoid any thoughts of that and just keep working till she is exhausted. Although it helps her distract from the worry and fear, she is also aware that she is responsible for N and tries hard to manage his needs and wellbeing (although it’s very hard) whilst managing everything else. She talked about the several responsibilities she has had to take unprepared and unplanned. The responsibilities have far exceeded the expected responsibilities she had before her mother was sentenced and further when she was moved to the detention centre with total uncertainty of time duration.
…
D expressed how she feels she cannot continue at the pace she is going, not only feeling burnt out but also that she cannot continue with the present responsibilities of managing her life, work, her brother and the business. She reported that this is also mostly because of the constant intense fear she has at the back of her mind. She feels she has no life and cannot conceive the idea of her mother not being around them. Her sense of obligation and hope that her mother was to be released and come home after her completing her prison sentence had been her driving energy to manage so far. However, with the present uncertainty, her depression and stress have exacerbated. The uncertainty about the time duration and the ultimate outcome for her mother has been her main fear. As can be expected, avoidance through focussing on her responsibilities has been helping her but she is, as noted, burnt out.
160. Dr Pattni assessed N on the DASS (Depression Anxiety and Stress Scale) as having extremely severe anxiety, extremely severe depression, and severe stress (G37/152). Dr Pattni confirmed at the hearing that N continued to be “highly at risk” and that his mental health had been deteriorating. Dr Pattni assessed D as having extremely severe anxiety, extremely severe depression, and moderate stress. At the hearing Dr Pattni also stated that D had recently expressed suicidal ideation.
161. The Applicant’s Australian citizen children, N and D, are indicative of her very strong ties to Australia.
162. I also find that if the Applicant was returned to Vietnam, it would have a devastating effect on N and D. Both are under extreme mental stress and their mental health has suffered because of the stress and uncertainty of their mother’s situation. The evidence suggests that N is a high risk of harm given his suicidal ideation and that D is also at risk of harm. If their mother was returned to Vietnam, N and D would be forced to give up their lives and studies in Australia to live in an unfamiliar country with their mother. It is more likely, however, that they would stay in Australia and face permanent separation from their mother. Although they could visit her in Vietnam, they require their mother in their daily lives. I find that N and D would suffer severe emotional and psychological detriment, as well as possibly financial detriment, if their mother was returned to Vietnam.
163. I find that the Applicant has very strong ties to Australia and together with the extent of the detriment to N and D if the Applicant is removed, I find that paragraph 9.4.1 of Direction No 90, being the strength, nature, and duration of the Applicant’s ties to Australia, weighs very strongly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
164. Paragraph 9.4.2(3) of Direction No 90 provides that:
(3)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.
165. This consideration does not arise on the material before me and is therefore not relevant.
the weighing exercise
166. The Applicant does not pass the character test under s 501 of the Migration Act.
167. 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 90.
168. For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 90. These were:
(a)The protection of the Australian community primary consideration weighed moderately against the revocation of the Cancellation Decision.
(b)With respect to the best interests of minor children, the best interests of the Applicant’s 15-year-old niece and a 10-year-old nephew, were neutral.
(c)The expectations of the Australian community weighed moderately against the revocation of the Cancellation Decision.
169. I made the following findings with respect to the other considerations that were relevant. These were:
(a)The extent of impediments if removed weighed strongly in favour of the revocation of the Cancellation Decision.
(b)The Applicant’s links to the Australian community weighed very strongly in favour of the revocation of the Cancellation Decision.
170. Although primary considerations are generally to be given greater weight (para 7(2) of Direction No 90), they are not hierarchical and other considerations can outweigh primary considerations.
171. Thus, despite two of the primary considerations (the protection of the Australian community, and the expectations of the Australian community) weighing moderately against the revocation of the Cancellation Decision, I find that they are outweighed by the other considerations of links to the Australian community which weighed very strongly and impediments if removed which weighed strongly in favour of the revocation of the Cancellation Decision. They are significant reasons which carry significant weight, such that I am satisfied that the Cancellation Decision should be revoked (Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64]).
172. In other words, 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 to substitute a new decision that the Cancellation Decision should be revoked.
Decision
173. The Reviewable Decision, being the decision of a delegate of the Respondent dated 23 November 2022, 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 173 (one hundred and seventy-three paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
.........[Sgd]............................................................
Associate
Dated: 16 February 2023
Date of hearing: 1, 2 and 6 February 2023 Representative for the Applicant: Mr S J Young of Murray Chambers instructed by Ms M Y Tran, MYT Nguyen Solicitors Representative for the Respondent:
Ms D Jones-Bolla, Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Statutory Construction
0
7
0