Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 4065
•30 November 2022
Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4065 (30 November 2022)
Division:GENERAL DIVISION
File Number(s): 2022/7483
Re:Duy Duc Nguyen
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:The Hon. Dennis Cowdroy AO KC, Deputy President
Date:30 November 2022
Place:Sydney
The decision under review is set aside and substituted with a decision to revoke the mandatory cancellation of the Applicant’s visa.
.................................[SGD].......................................
The Hon. Dennis Cowdroy AO KC, Deputy President
Catchwords
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – best interests of minor child – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to removal – decision set aside and substituted.
Legislation
Migration Act 1958 (Cth)
Cases
BHYK and Minister for Immigration and Citizenship [2010] AATA 662
Cotterill v Minister for Immigration and Border Protection [2019] FCAFC 61; (2016) 240 FCR 29
Dang and Minister for Home Affairs (Migration) [2018] AATA 2095
DOB18 v Minister for Home Affairs [2019] FCAFC 63
FYBR v Minister for Home Affairs [2019] FCAFC 185
HMDS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1634
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466Secondary Materials
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO KC, Deputy President
30 November 2022
The Applicant seeks review of a decision of a delegate of the Respondent (“the Minister”) made on 6 September 2022 (“the decision under review”) not to exercise the discretion under subsection 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) to revoke the original decision made under subsection 501(3A) of the Act, on 22 February 2022, to cancel the applicant’s Return (Residence) (Class BB) (Subclass 155) – five year visa (“the visa”).
A delegate of the Minister was satisfied that the Applicant did not pass the character test on the basis that he had a “substantial criminal record” as a result of being sentenced to a term of imprisonment for 12 months or more: paragraph 501(7)(c) of the Act.
On 18 March 2022, the Applicant sought revocation of the mandatory cancellation of the visa under subsection 501CA(4) of the Act.
On 6 September 2022, a delegate of the Minister decided not to revoke the original decision. On 14 September 2022, the Applicant applied to the Tribunal for review of that decision. The hearing before the Tribunal was held in person on 16 November 2022.
relevant law and policy: DIRECTION no. 90
Section 501CA of the Act applies if the Minister decides under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Paragraph 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(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.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to section 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction” or “Direction 90”).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
(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 measurable 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 non-citizens 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 non-citizens 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 measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
(a)protection of the Australian community from criminal or other serious conduct (“Primary Consideration A”);
(b)whether the conduct engaged in constituted family violence (“Primary Consideration B”);
(c)best interests of minor children in Australia (“Primary Consideration C”); and
(d)expectations of the Australian community (“Primary Consideration D”).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community: including the strength, nature and duration of ties to Australia and the impact on Australian business interests.
Facts
The Applicant, who is 33 years of age, was born in Hong Kong but is a citizen of Vietnam.
The visa history of the applicant is as follows:
Visa type
Date granted
Date ceased
Schools Sector visa (Class TU) (Subclass 571)
08/11/2006
15/03/2009
Bridging visa A (Class WA) (Subclass 010)
03/03/2009
09/07/2009
Bridging visa B (Class WB) (Subclass 020)
09/07/2009
18/05/2011
Partner (Temporary) (Class UK) (Subclass 820)
06/01/2010
18/05/2011
Partner (Residence) (Class BS) (Subclass 801)
18/05/2011
02/01/2020
Resident Return visa (Class BB) (Subclass 155)
02/01/2020
22/02/2022 (cancelled by delegate under s 501(3A) of the Migration Act 1958 (Cth))
evidence
Statements
The Tribunal has been provided with the following statements:
(a)a statement of the Applicant dated 18 October 2022
(b)a statement of Ms TDP (Applicant’s mother) dated 18 October 2022: this witness lives in Australia. She states that her son is a very good son to her and is very close to her. She is aware of her sons record and stated if he is returned to Vietnam he will be living by himself without any family support and that his daughter will be growing up without a father.
(c)a statement of Mr DHL (Applicant’s younger brother) dated 18 October 2022: this witness lives in Australia and confirms that the Applicant has been a good brother to himself, and to his mother. He states that his brother (the Applicant) is “very sorry about his offences”.
(d)a statement of Ms KLNN dated 18 October 2022: This witness, aged 27 years, is the partner of the Applicant. She states that she had been in a previous relationship but that marriage was terminated in December 2021 following a divorce. The witness formed a relationship with the applicant and as a result they have a daughter born in December 2018. The witness states that after her divorce she applied to have her new partner’s name (i.e. the Applicant’s name) added to her daughter’s birth certificate but she could not do so “because he was already in custody”. They had been close friends since she was 18 years of age. The witness says she has been suffering from depression following the birth of her child. She is an Australian citizen and seeks that her daughter has a chance to be educated in Australia.
Oral evidence
The Tribunal heard oral evidence from the Applicant, his partner and from his younger brother, DHL.
Medical evidence
A report of Mr Bradley Jones, Forensic Psychologist dated 6 October 2021 was provided to the Tribunal.
Applicant’s Criminal history
Date of conviction
Date of offence
Offence
Sentence
Reference
10/02/2015
26/08/2014
Cultivate prohibited plant
12 month suspended sentence of imprisonment (s 12 Bond)
G3/27
02/02/2022
26/07/2020
to 24/10/2020
Knowingly take part-cultivate
>=large comm qty-cannabis-SI
3 years imprisonment.
Non-parole period of 1 year
and 6 months.
G3/27
On 10 February 2015, the Applicant was convicted of cultivate prohibited plant, for which he was sentenced to 12 months imprisonment. The sentence was fully suspended, subject to a bond for 12 months. It appears that because this was the Applicant’s first offence he was given the opportunity to rehabilitate himself.
On 2 February 2022, the Applicant was convicted of knowingly take part – cultivate >= large commercial quantity of cannabis-SI. The Applicant was sentenced to 3 years imprisonment. The sentencing remarks of the judge indicate that the Applicant did not have any organisational role in the operation nor did he stand to share the prospective profit. Rather, the Applicant was tending to the crops as a “crop sitter”.
Sentencing observations
The Tribunal has considered sentencing observations in relation to the second of the two convictions. The sentencing remarks relating to the first conviction have not been provided to the Tribunal.
On 2 February 2022 before the District Court of New South Wales Criminal Jurisdiction, His Honour Judge Jeffreys sentenced the applicant for an offence that occurred between 26 July 2020 and 24 October 2020 at Melinga in New South Wales whereby he did knowingly take part in the cultivation of a number of cultivated plants namely 3,702 cannabis plants. The maximum penalty in relation to the offence was 20 years imprisonment with a standard non-parole period of 10 years.
In his sentencing remarks, His Honour Judge Jeffreys recorded as follows:
The offender has a previous criminal record in 2015 for an offence in August 2014 of cultivating a prohibited plant. He was sentenced to 12 months imprisonment. That sentence was immediately suspended on his entering a bond to be of good behaviour for a period of 12 months.
Accordingly, His Honour found that the Applicant could not be treated with a degree of leniency that he would have had as a first offender.
A sentence of three years was imposed from 23 October 2020. A non-parole period of one year and six months was fixed to expire on 22 April 2022. Thereafter parole was to continue until 22 October 2023.
Issues for determination
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
(a)the Applicant passes the character test as defined by section 501 of the Act: subparagraph 501CA(4)(b)(i); or
(b)there is another reason why the original decision should be revoked: subparagraph 501CA(4)(b)(ii).
The Applicant does not pass the character test because he has a substantial criminal record as defined by the Act. Therefore, the sole issue for determination by the Tribunal is whether there is another reason why the original decision should be revoked.
The Tribunal now turns to assess the primary considerations as relevant.
primary considerations
primary consideration A: Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:
When considering protection of the Australian community… 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 also 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.
Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the Applicant presents to the community.
Nature and seriousness of the conduct
The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction. The crimes for which the Applicant was convicted were serious crimes, as evidenced by the maximum penalties which could be imposed.
The Tribunal notes significant matters relative to the consideration of the protection of the Australian community:
(a)the applicant participated in the cultivation of a substantial quantity of cannabis plants; and
(b)the applicant had already been convicted of an offence of the same nature and in respect of which he was granted leniency by the court.
Risk to the Australian community should the Applicant reoffend or engage in other serious conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction.
Evidence of Mr Bradley Jones, Forensic Psychologist
Mr Jones provided a report which was tendered to the Taree District Court on 8 October 2021. Mr Jones assessed the Applicant by audio-visual link on one occasion on 21 September 2021. Mr Jones obtained the family history and the education and employment history of the Applicant. The conversation was conducted through an interpreter. In regards to a risk assessment, Mr Bradley Jones used a Level of Service Inventory – Revised, (LSI-R) which he describes as a quantitative survey of attributes of offenders and their situations designed to provide a comprehensive risk/needs assessment that may assist the offender treatment planning and assigning levels of freedom and supervision. Mr Jones concluded “[t]he results of the LSI-R indicate that [the Applicant) is at low risk of re-offending.” Mr Jones did not consider that the Applicant suffered any psychological or psychiatric condition and his offending occurred due to loss of gainful employment.
Finding on Primary Consideration A
Given the factors discussed above, the Tribunal finds that this consideration weighs against of revocation of the original decision.
primary consideration B: Family violence committed by the non-citizen
Paragraph 8.2(1) of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines family violence to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful".
The conduct of the Applicant does not involve family violence and accordingly this consideration is not relevant.
Finding on Primary Consideration B
The Tribunal finds that this consideration is not relevant.
primary consideration C: Best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).
Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
(a)the nature and duration of the relationship between the child and Applicant. 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) (subparagraph 8.3(4)(a));
(b)the extent to which the Applicant 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 (sub-paragraph 8.3(4)(b));
(c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (subparagraph 8.3(4)(c));
(d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (subparagraph 8.3(4)(d));
(e)whether there are other persons who already fulfil a parental role in relation to the child (subparagraph 8.3(4)(e));
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (subparagraph 8.3(4)(f));
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (subparagraph 8.3(4)(g)); and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (subparagraph 8.3(4)(h)).
The Applicant claims to have a daughter, aged three years. The Applicant is not noted as the father on the birth certificate of the putative daughter. It is claimed by the Applicant’s de facto spouse that the Applicant was not named as a father because of the time that the mother applied for the birth certificate, the Applicant was in custody.
During her oral evidence, the mother of the child testified that she did not want the Applicant’s name to be recorded as at that time she was still married although separated. She states that she subsequently enquired about the procedure to have the Applicant’s name recorded but was told that unless DNA evidence was available to confirm the paternity it was not possible to have such particulars incorporated on the register. The Applicant has not undergone a DNA test
The Tribunal notes that the child was born in December 2018, being the same year when the applicant and his partner began their intimate relationship. The Applicant was present at the birth of the child. There was conflicting evidence provided by the Applicant who asserted that he commenced living with the child’s mother early in 2018. However the Applicant’s mother testified that they did not live together until later that year. However, he would stay overnight at her house before they lived together as a couple. Their full-time living together commenced sometime in 2018.
The Tribunal notes that in the preparation of a report by Community Corrections, the de facto spouse claimed that she and the applicant were “best friends” but were not in a marital relationship.
The Applicant told the District Court when he was being sentenced that he has contact with his daughter by phone and audio-visual link. According to the statement of the Applicant’s partner, she considers that the Applicant has a fatherly role towards his daughter. The Tribunal accepts that if the Applicant were returned to the community, he would fulfil a parental role.
Finding on Primary Consideration C
The Tribunal considers that, despite the conflicting evidence, the child is probably that of the Applicant but that this could only established by DNA testing. Irrespective, the fact is that the evidence shows that the Applicant and his partner were living together in the two-year period before he was incarcerated for his last offence and that the Applicant was in loco parentis. The possibility that the Applicant could serve in a parental role if he were removed from Australia would have detrimental consequences to his daughter. Communicating by electronic means is not an appropriate substitute, as was considered by the Tribunal in HMDS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1634 at [83] – [84]. The best interests of the Applicant’s child weighs in favour of the revocation of the original decision.
PRIMARY CONSIDERATION D: Expectations of the Australian community
Paragraph 8.4(1) of the Direction provides that:
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 not to allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed 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.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community ( paragraph 8.4(3)).
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 (paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 65, those principles are relevantly analogous in principle with respect to Direction 90.
It has further been held that the consideration is “[i]n substance … adverse to any applicant”: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
Finding on Primary Consideration D
The applicant arrived in Australia holding a student visa when he was 17 years of age. In Vietnam, he completed the equivalent of kindergarten to year 11. Following his arrival in Australia he secured various unskilled jobs including general labouring and handyman roles. He worked as a delivery driver between 2010 and 2013 and again with another company between 2016 and 2018. He has had periods of unemployment in excess of one year and was last employed in 2020 as a delivery driver. Whilst in custody the Applicant had worked as a machinist in the textile business unit and was described by the overseer of the unit as well-behaved and a worker who is capable of meeting production targets and having very minimal error rate.
The Intensive Correction Order Assessment Report dated 30 January 2015 prepared in relation to the Applicant’s first offence reports that whilst the applicant claimed not to be a drug user, a drug screen collected on 26 November 2014 returned a positive result for methamphetamine. The Applicant in response claimed that he may have taken some drugs on his birthday which was earlier that month however, his claim was incorrect because such substance is not detectable after a five-day period.
A Sentencing Assessment Report dated 16 August 2021 prepared in relation to the most recent offence recorded that the Applicant knew he was acting unlawfully, and the possible consequences. However, his accommodation and financial issues were so serious he agreed to involving the criminal activity knowing the risk.
However, the report states in relation to the applicant’s attitude:
[The applicant] placed blame on his employer for his involvement in the offence and said that he was following his employer’s instructions; the scheduled delivery of goods to a farm.
Displaying no insight into his offending behaviour, [the applicant] was not forthcoming with information pertaining to the offence, taking no responsibility; in denying he knowingly took part in growing cannabis.
The report states that the applicant “has no insight into the impact of his offending despite his previous conviction of a similar nature”.
The Tribunal places little weight on the conclusion of Mr Jones assessment that the Applicant has a low risk of reoffending in view of the fact that the 2015 offending of the Applicant was not referred to by Mr Jones. Whilst a sentencing assessment report was provided and a criminal history was provided, it appears that no weight whatsoever was given to the fact that the applicant had been engaged in two offences of a similar kind.
The Tribunal notes the evidence contained in Sentencing Assessment Report of 16 August 2021 that the Applicant was at a low to medium risk of reoffending.
The Tribunal concludes that, having had the chance to rehabilitate himself resulting from his first conviction, and having failed to do so, there is a low to medium risk that the Applicant will reoffend in the future. The statement of the Applicant dated 18 October 2022 confirms that he was aware of the seriousness of his conduct, yet he participated in it for financial reasons. He claims “I foolishly thought that my action was not that serious”.
Circumstances of Offending
Although the Tribunal cannot go behind a conviction (HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [66] – [79]), the circumstances in which the offending occurred must be taken into consideration by the Tribunal: see Cotterill vMinister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29 at [91]. No legally reasonable conclusion considering the seriousness of the offence can be determined without informative details the actual circumstances involved. Similarly, Buchanan J in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 (“NBMZ”) held that a visa holder is entitled to have their application assessed with proper regard to the merits of their particular circumstances: see [202] and [207].
First Offence: The first offence occurred when the Applicant was homeless and jobless. He had been in employment but his employment had ended. He states that a friend offered him free accommodation if he cared for his plants in his friend’s home and also that he would pay the Applicant $500 per week. Accordingly, the Tribunal accepts that the Applicant engaged in the criminal conduct resulting from financial hardship. The sentencing court was apparently of the same opinion when, although a sentence of 12 months was imposed, the whole sentence was suspended. It appears that the sentencing court did not regard the degree of criminality of the applicant as being high.
Second Offence: With respect to the second conviction, it was again financial hardship which caused the Applicant to engage in the criminal activity. He had been in employment which was terminated following the Covid outbreak. He had a wife and daughter to support with no income and was living with her mother. The degree of criminality for this offence should be considered against the sentencing judge’s observation, namely that there was no evidence that the Applicant:
… stood to profit from the sale of a harvested cannabis. The evidence is incapable of satisfying me beyond reasonable doubt that any payment received or to be received by the offenders and each of them was other than modest. There is no evidence that either of the offenders had any particular technical expertise related to the cultivation of cannabis. There is no evidence that either of the offenders recruited others. There is no evidence that either of the offenders organised any of the workers or was in any type of management position.
His honour described the Applicant and his co-offender as follows:
The offenders here appear to have simply been labourers. It is apt to describe them as “crop sitters” or “babysitters”. Importantly, they were crop sitters on a part-time basis.
As to the degree of criminality, His Honour said:
In my view, taking into account the fact that each of the offenders were crop sitters who attended on a part- time basis, the objective seriousness is considerably below the mid-range.
The Tribunal considers that the fact that the first offence did not result in any custodial period; and the second offence was considered by the court as having a seriousness considerably below the mid-range, the offending of the Applicant, although serious, is not so serious as to warrant cancellation when other competing factors are weighed up, namely the interest of the child.
The Respondent referred the Tribunal to the decision in Dang and Minister for Home Affairs (Migration) [2018] AATA 2095 at [54] – [56]. In that decision, the unsuccessful applicant had been charged on two occasions of cultivating cannabis. However, the circumstances are different to those which the Tribunal has before it. In that decision, the applicant, although denying that he had any financial interest in the cultivation of the crop, was found to be unreliable; secondly, he had a history of drug offences. He had three nephews, but the youngest was approximately 10 years of age. In the present application, the child in question is only three years of age and the Applicant has no history of drug offences other than the two convictions; and in each case he did not to share in any of the financial gains from the cultivated crop.
The Tribunal accepts that, the Australian community’s expectations would prima facie weigh against the Applicant.
Other considerations
The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.
International non-refoulement obligations
This consideration is not relevant in this matter.
Extent of impediments to the applicant if removed from Australia
Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the noncitizen 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.
In response to the above criteria:
(a)There is no evidence that the Applicant suffers any ill health. He is aged 33 years and should be able to find gainful employment.
(b)There are no cultural or language obstacles to prevent the applicant assimilating into his country. The Applicant would be familiar with Vietnamese culture and norms seeing that he departed there at age 17.
(c)the evidence shows that his father resides in Vietnam. The Applicant has a close relationship with his younger brother who resides in Sydney. His mother is approximately 52 years of age, as is his father. The parents separated in 2018 but still maintain a cordial relationship. Each are in employment and the Applicant had a good upbringing although the family struggled financially. The Applicant, since living in Australia has maintained regular contact with his brother and they continue to share a close relationship
(d)the Applicant would have access in Vietnam to health services and welfare as any other citizen would. Whether that would be of the same standard as that prevailing in Australia is unknown but it is likely that it would not be of the same standard but nevertheless it is the standard prevailing in that country.
The Applicant may face some adjustments returning to Vietnam but they should be temporary. His partner is Vietnamese. If she remains in Australia, it is unknown what support would be available to her. However, there is apparently no reason why she should not return with the applicant to Vietnam.
The Tribunal finds that this consideration weighs against revocation.
Impact on victims
Paragraph 9.3(1) of the Direction provides:
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.
This consideration must be considered in respect of the laws which were breached by the applicant on two occasions. The photographs of the crop made available to the Tribunal show that the plantation of cannabis was on an industrial scale. The plantation was by indoor greenhouses. The cannabis plants were cultivated in approximately 10 greenhouses. Some greenhouses had 12 plants in each row and 15 plants in each row in another greenhouse. The sentencing remarks record:
Offences involving the cultivation of a large commercial quantity of cannabis plants are objectively most serious. General deterrence and punishment are of particular importance. The courts and the legislature have recognised that in assessing the objective seriousness of drug offences, including cultivation of cannabis plants, regard should be had to the drugs’ potential for harm in both direct and indirect ways in that drug dealing and drug cultivation does not simply dispense or produce illegal drugs but is at every level associated with criminal conduct and leads to other forms of crime.
Sentencing principles require the court to deter the commission of serious crime and punish those who commit it…
In view of the above, the Tribunal finds that this consideration weighs against revocation.
Links to the Australian community
The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).
Strength, nature and duration of ties to Australia
Under paragraph 9.4.1 of the Direction:
(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.
(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 non citizen 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.
The Applicant has resided in Australia for approximately 16 years. There is no evidence that he has formed any close association other than a partnership which lasted for about eight years. Such partnership no longer exists. Thereafter in 2018 he formed a relationship with his present partner. The Applicant is unable to converse in the English language despite his period of living in Australia. There is no evidence of any contribution he has made to Australia.
Taking these factors into consideration, the Tribunal considers the strength, nature and duration of the ties to Australia are such as to weigh in favour of the revocation of the original decision.
Impact on Australian business interests
This consideration is not relevant in this matter.
OBSERVATIONS
The Applicant has been given a second chance to become a law-abiding citizen. The Applicant has failed to accept that privilege. He has committed a further serious offence of the same kind. However, the Tribunal takes into consideration the circumstances which led him to engage in the criminal activity. The Tribunal notes that the conduct has not involved violence to any person nor has the Applicant been directly involved in any harm to any member of the Australian community.
The factor which weighs heavily on the Tribunal’s consideration is the fact that he now has a three year old daughter and that there is a close bond between the Applicant and the daughter. If the Applicant is unsuccessful in his application, it is most likely that the child will be bought up without a father. Such a consequence would be highly detrimental to the child and the Applicant now appreciates the responsibility of being a parent.
The Tribunal heard testimony from the child’s mother. The Tribunal was impressed by her testimony. She stated that she was unaware that the Applicant had taken employment on the second occasion which caused him to break the law. She was most annoyed that he had become involved in criminal activities. The Tribunal considers that in the future, the Applicant’s partner and her child will pose a stabilising influence in his life. The Tribunal is required to have regard to the future, rather than the past. As Buchanan J observed in NBMZ at [192] relevantly:
… the discretion to be exercised under s 501 is fundamentally forward, rather than backward, looking. It concerns the future, not the past.
The Tribunal considers that, but for the interests of the child, it would dismiss the application. However, it considers that the interests of the child overrides the possible risk of recidivism which is assessed to be low-medium weighs in favour of revoking the decision under review. The Tribunal does not consider that the Applicant constitutes a “danger” to the community, that is a present and serious risk: see DOB18 v Minister for Home Affairs [2019] FCAFC 63; nor is there a “real or significant risk or possibility of harm to one or more members of the Australian community”: see BHYK and Minister for Immigration and Citizenship [2010] AATA 662 at [53]. The possible risk to the community if the Applicant is permitted to remain in Australia is an acceptable risk.
Conclusion
Primary Considerations A and D weigh against revocation. Primary Consideration B is neutral and Primary Consideration C is in favour of revocation. Of the other considerations, there are some considerations which weigh against revocation. Despite these findings, in weighing the competing considerations and the weight to be given to all relevant considerations, the Tribunal finds that there is “another reason”, namely the interest of the child.
For these reasons, the Tribunal is satisfied that the decision should be set aside.
decision
The Tribunal finds that the correct and preferable decision is that the decision under review be set aside and in substitution the mandatory cancellation of the Applicant’s visa is revoked.
I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO KC, Deputy President
.................................[SGD].......................................
Associate
Dated: 30 November 2022
Date(s) of hearing: 16 November 2022 Date final submissions received: 16 November 2022 Counsel for the Applicant: Mr N Poynder Solicitor for the Applicant: Mr T Nguyen, Solis Lawyers Solicitor for the Respondent: Mr M Burnham, Sparke Helmore Lawyers
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