Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 2887
•7 September 2022
Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2887 (7 September 2022)
Division:GENERAL DIVISION
File Number: 2022/5307
Re:Phuoc Dang Khoa Nguyen
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member A. Nikolic AM CSC
Date:7 September 2022
Place:Melbourne
The Tribunal sets aside the reviewable decision of 21 June 2022 and substitutes a decision that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
.......................[sgd].................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of Vietnam – Class BS Subclass 801 Partner (Residence) Visa – failure to pass good character test – minor role in single offence – cultivate cannabis – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 90 applied – decision set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)Drugs, Poisons and Controlled Substances Act 1981 (Vic)
CASES
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Al-Kateb v Godwin (2004) 219 CLR 562
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
DPP v Nguyen & Anor [2020] VCC
Fardon v Attorney-General (Qld) (2004) 223 CLR 575
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Guden v The Queen [2010] VSCA 196
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3130
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Murphy v Minister for Home Affairs [2018] FCA 1924
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Nathanson v Minister for Home Affairs [2022] HCA 26
O’Keefe v Calwell (1949) 77 CLR 261
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018)74 AAR 545
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
VNPC v Minister for Immigration [2022] FCA 921YKSB v Minister for Home Affairs [2020] FCAFC 224
SECONDARY MATERIALS
Australian Criminal Intelligence Commission, Illicit Drug Data Report 2018-19 (September 2020)
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CASentencing Advisory Council, ‘Imprisonment’ < FOR DECISION
Senior Member A. Nikolic AM CSC
7 September 2022
The Applicant seeks review of a decision by the Respondent not to revoke the mandatory cancellation of his Class BS Subclass 801 Partner (Residence) Visa.[1]
[1] Exhibit R1, 50; 340.
The hearing was held in person at the Tribunal’s Melbourne Registry on 1 and 2 September 2022. The Applicant was represented by Mr Quan Do, a migration agent from Endless ILA Pty Ltd. The Respondent was represented by Ms Gabrielle Ho, a solicitor from Clayton Utz. The Applicant was assisted by an interpreter in the Vietnamese language.
For the following reasons, the Tribunal sets aside the reviewable decision.
FACTS
The Applicant is a 33-year-old citizen of Vietnam.[2] He was educated to Year 12 level[3] and worked for a time in his family’s business, which his parents still own and operate. His parents, two siblings, and “many” other aunts and uncles still live in Vietnam.[4] The Applicant has returned to Vietnam on nine occasions between mid-2012 and late-2018.[5]
[2] Ibid 53.
[3] Ibid 12.
[4] Ibid 130.
[5] Ibid 201-202.
The Applicant came to Australia in October 2011 on a Student Visa[6] to study business administration. He did not complete this, citing struggles with English, financial pressure, and “exposure to a divergent…culture” while living alone.[7] The Applicant undertook a vocational course[8] and has worked as a waiter and sub-contractor installing floors.
[6] Ibid 64; 301.
[7] Ibid 77; 130.
[8] Ibid 72.
Approximately a year after his arrival, the Applicant met a woman of Vietnamese origin who will be referred to as Ms PB. She is an Australian citizen who has lived in Australia since the age of 10.[9] Ms PB and the Applicant married in May 2014[10] and had a child together who is now seven years of age.[11] The couple purchased a home in 2018.
[9] Ibid 144.
[10] Ibid 26; 38; 131.
[11] Ibid 66.
In or about August 2019, the Applicant said he and Ms PB experienced financial pressures. He was offered $3000 for a single day’s work cutting up cannabis, which was as much as he normally earned in a week. The Applicant accepted the offer, attended a crop house, and was arrested on the same day (23 October 2019).[12] After being interviewed, charged, and held on remand for 35 days,[13] he was released on bail. The Applicant said he was never paid for his involvement and had no further contact from the offeror.
[12] Ibid 17; 35.
[13] Ibid 38.
On 4 December 2020, the Applicant pleaded guilty to and was convicted in the County Court of cultivating a commercial quantity of cannabis.[14] He was sentenced to 20 months imprisonment, with a non-parole period of 11 months.
[14] Ibid 33.
On 15 January 2021, the Applicant was told his visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act).[15] He was invited to make representations to have the cancellation decision revoked and did so through his legal representative.[16]
[15] Ibid 203-210; 271.
[16] Ibid 47, 193-200; 274; 297; 299-319; 327-330.
On 21 June 2022, a delegate of the Minister decided not to revoke the mandatory cancellation decision (non-revocation decision).[17] On 27 June 2022 the Applicant asked the Tribunal to review this.[18]
[17] Ibid 10-12.
[18] Ibid 1-9.
The Tribunal must decide this application within 84 days of the Applicant being properly notified of the non-revocation decision.[19] These reasons are provided three working days after the hearing concluded and within the permissible 84-day period.
[19] Section 500(6L) of the Act.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and a person does not pass it if they have a ‘substantial criminal record’ as defined by s 501(7). This includes if they are sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
ISSUES
Character test
It was submitted by Mr Do: “we set out to demonstrate that Mr Nguyen passes the character test, and that compelling circumstances exist, which will prove that Mr Nguyen is not the intended target within the scope of policy intention”.[20] When asked about this during the hearing, Mr Do properly conceded the Applicant does not pass the character test.
[20] Applicant’s Statement of Facts, Issues, and Contentions (“ASFIC”) dated 6 August 2022, 2 [4].
The Applicant was convicted of a crime and sentenced to 20 months imprisonment. He does not pass the character test due to the operation of ss 501(6)(a) and 501(7)(c) of the Act. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. The remaining issue under s 501CA(4)(b)(ii) of the Act is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ for revocation.[21] The Tribunal “stands in the shoes of the original decision-maker” but with regard for the situation at the time of its decision.[22]
[21] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[22] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
Another reason?
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 reflected with approval upon the reasoning in Viane[23] and at [27] identified the following principles as relevant to the statutory task conferred by s 501CA(4):
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[23] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
The Tribunal is bound by s 499(2A) of the Act to comply with Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).
The Direction
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Minister acting personally, the Direction must be applied by decision makers under the Act.[24]
[24] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
Direction 90 contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[25] The following principles inform decision-making:[26]
(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 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 risk of causing physical harm to the Australian community.
[25] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, [45].
[26] Clause 5.2 of the Direction.
Clause 6 of the Direction provides that, informed by the above principles, a decision-maker must consider cls 8 and 9 where relevant to the decision. Clause 8 of the Direction provides the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia;
(d)Expectations of the Australian community.
Clause 9 of the Direction identifies the following non-exhaustive list of other considerations to be taken into account where relevant:
(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; and (ii) Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Clauses 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’ This does not preclude the Tribunal giving a cl 9 consideration the equivalent of or even greater weight than a primary consideration, which turns on the specific circumstances of each case.[27] The weighing process is determined by decision-makers exercising power under the Act.[28]
EVIDENCE
[27] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
[28] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].
Documentary evidence
The following documents were tendered into evidence:
(a)Applicant’s Statement dated 5 August 2022;[29]
(b)Statutory Declaration of Ms PB dated 8 August 2022;[30]
(c)Statutory Declaration of Ms PB’s father dated 3 August 2022;[31]
(d)Statutory Declaration of Ms PB’s sister dated 3 August 2022;[32]
(e)Statutory Declaration of the Applicant’s brother-in-law dated 3 August 2022;[33]
(f)Statutory Declaration of Ms PB’s mother dated 3 August 2022;[34]
(g)Statement from a business owner offering the Applicant work;[35]
(h)G-documents[36] numbering 341 pages;[37] and
(i)Supplementary G-documents numbering 23 pages.[38]
[29] Exhibit A1.
[30] Exhibit A2.
[31] Exhibit A3.
[32] Exhibit A4.
[33] Exhibit A5.
[34] Exhibit A6.
[35] Exhibit A7.
[36] G documents are so named because they are provided under s 501G of the Migration Act. They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
[37] Exhibit R1.
[38] Exhibit R2.
The Applicant and his wife were the only witnesses. The other statements and statutory declarations were accepted into evidence unchallenged.
Applicant’s evidence
The Applicant adopted his statement dated 5 August 2022 as true and correct. The Tribunal has also considered his previous statement dated 1 May 2021.[39]
[39] Exhibit R1, 188-189.
The Applicant’s evidence centred on the interests of Ms PB and their child, remorse for his offending, consequences for his family, and a commitment not to reoffend if released. He was supported at the hearing by Ms PB and eight family members or friends. Key aspects of the Applicant’s evidence are now summarised:
(a)The offer to become involved in the cannabis enterprise was for a “very simple” one-day job cutting up harvested cannabis. He was promised $3000 but never received payment after being arrested on the day of his involvement.
(b)The Applicant said he wanted to earn “quick money” because work opportunities reduced during the COVID-19 lockdown, causing a downturn in his contracting business and difficult trading conditions for Ms PB’s business. This aspect of the Applicant’s evidence was unpersuasive in circumstances where he was arrested on 23 October 2019 and the COVID-19 lockdowns did not commence until 2020. The Applicant also contextualised his involvement as wanting to surprise Ms PB with a gift. He described his participation in the cannabis enterprise as a “silly mistake”, following which his “world collapsed” after arrest and imprisonment.
(c)The Applicant said he was released on bail after a short time on remand, during which he worked hard to save enough money for Ms PB to support their family during his expected imprisonment. The Applicant said he suffered depression and anxiety about his family’s future, including while imprisoned, but this has since resolved.
(d)The Applicant said he is ashamed of his offending and did not tell his parents until three months ago. His mother is currently in Australia to visit and support him.
(e)The Applicant referred to six sessions of counselling,[40] an Alcohol and Other Drugs course,[41] and several vocational courses undertaken while imprisoned. He said these taught him about the harmful effects of illicit drugs on society.
[40] Ibid 192.
[41] Exhibit R2, 15-16.
(f)The Applicant said he was involved in only one incident while imprisoned where a cellmate gave him illicit alcohol.[42] He initially claimed to have taken only a sip, but when challenged agreed he drank enough to became intoxicated. This resulted in an internal disciplinary process and a fine of $30. The Applicant said he regrets this impulsive act, learned his lesson, and there had been no repeat. The Applicant disagreed with Ms Ho’s proposition that this incident showed he was easily led by others, stating he “changed himself totally” after this incident, focussed on work, separated himself from negative influences, and there was no further misconduct.
(g)The Applicant said even though he was 30 years of age when arrested, he has matured since and now focusses on the important things in life; namely working hard and providing for his family lawfully.
(h)The Applicant said his family’s financial situation has stabilised since his offending, including because Ms PB sold her business. The Applicant said they have kept up with mortgage payments and currently have about $350,000 equity in their home. If confronted by financial pressure in the future, he has a re-draw facility to call upon and can also seek assistance from family members if needed.
(i)The Applicant said there is no medical or other reason precluding his immediate return to work. He only used “Panadol” and hay fever medication in custodial settings. He referred to a surge in the building trade and said that with five years’ experience as a flooring subcontractor he could easily find work. He has received several offers of work, including from a previous employer.[43]
(j)The Applicant agreed he had not done any further counselling since the sessions undertaken in 2020, which were delivered in Vietnamese. He said the depression and anxiety noted by Mr Watson-Munro 18 months ago arose from family separation, which is no longer an issue. He claimed not to need further treatment if reunited with his family and will manage stressors by discussing issues with Ms PB and his family.
(k)A recurring feature of the Applicant’s evidence was the love he has for his child and a desire to resume a prominent parental role. He has daily telephone / video calls and weekly visits with his child. He said the child has been diagnosed with asthma and he would like to assist Ms PB with their child’s needs.
(l)The Applicant said it would be very difficult for Ms PB to accompany him to Vietnam permanently, because she has lived in Australia since the age of 10 and all her family live here. She accompanied him to Vietnam in the past with their child and could do so again, but permanent relocation is ruled out.
(m)The Applicant said neither he, his family, or Ms PB’s family ever engaged in public activities critical of the Vietnamese Government.
(n)The Applicant plans to undertake further studies and aspires to be a builder.
(o)If returned to Vietnam, the Applicant said this would cause his family to “lose face.” He will live in another part of the country so as not to add to their shame.
[42] Exhibit R1, 126-127.
[43] Exhibit R1, 178; 191; Exhibit A7.
Evidence of Ms PB
Ms PB adopted her statement dated 5 August 2022 as true and correct. Her oral evidence is now summarised:
(a)Ms PB has lived in Australia since the age of 10, was educated to undergraduate level, worked, owned a business, is engaged in community activities, and has enrolled but deferred a law degree because of the Applicant’s circumstances. She cares for their child and an elderly grandmother. Ms PB said family members assist her and she receives Carer Allowance to help look after her grandmother.
(b)Ms PB said she can visit the Applicant in Vietnam but is unable to move there permanently because her life and their child’s life is established here. She has no family residing in Vietnam.
(c)Ms PB said their child, who is in Grade 2, has an established network of friends. Because of the child’s age and inability to understand what is happening, she deflects questions about the Applicant’s circumstances. Since the Applicant moved to immigration detention, she visits with their child weekly, and they otherwise remain in daily contact through telephone and video calls.
(d)Ms PB is involved in her faith community and referred to her marriage vow and love for the Applicant. She was unaware of and shocked by his offending and subsequently made him promise never to commit another crime. She told the Applicant his offending was not worth it given the consequences wrought on their family. He promised her never to reoffend again. Ms PB believes his undertaking is genuine and is confident he will not squander another opportunity, if provided, to re-establish their life together.
(e)Ms PB does not know why the Applicant offended, but disagrees it was because of financial pressure. She stated that her needs and that of their child are very modest.
TRIBUNAL CONSIDERATION OF THE EVIDENCE
The Tribunal found the Applicant’s oral evidence to be generally forthright, although he attempted at times to minimise his culpability. This is perhaps understandable given the shame he expressed and the consequences on those close to him, many of whom attended the hearing. It is to his credit, however, that when challenged about some responses, he answered in a forthright way, acknowledging the full extent of his involvement.
Ms PB was an impressive witness who gave dignified and heartfelt evidence. She displayed commendable insight into the Applicant’s conduct and stoicism in dealing with the prolonged adverse personal consequences on herself and their child. The Tribunal was impressed by her evidence about the role she intends to play, in conjunction with other family members, to help the Applicant lead a productive and law-abiding life if released.
PRIMARY CONSIDERATIONS
Tribunal consideration: Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(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. 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.
(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.
Tribunal consideration: The nature and seriousness of the conduct
Clause 8.1.1(1) of the Direction states that in considering 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, or an offence against section 197 A 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 reoffended 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).
The Tribunal has considered sentencing remarks dated 4 December 2020,[44] which include references to the serious nature of commercial drug production.[45] His Honour noted the total weight of drugs seized was approximately 77 kilograms, over three times the amount required to establish a commercial quantity. The Applicant’s role, however, was one of “expendable…paid labourer”, as opposed to ‘someone who had a direct financial interest in the success of the venture’. The Applicant pleaded guilty at an early stage, thereby facilitating the course of justice, and which reflected a “degree of remorse”. The Applicant’s younger co-defendant was noted to have pleaded guilty to a lesser offence, for which he received a term of 10 months’ imprisonment.
[44] Exhibit R1, 34-41.
[45] Ibid 36 [7]; 38 [12].
The Tribunal has considered the Applicant’s and Respondent’s submissions about cl 8.1.1 of the Direction.[46] Mr Do submitted this primary consideration weighs in favour of the Applicant, while Ms Ho submitted it weighed strongly against. Ms Ho acknowledged, however, it was a single offence at the “lower end of the spectrum of seriousness”.
[46] ASFIC, 8-10 [17]-[19]; Respondent’s Statement of Facts, Issues and Contentions (“RSFIC”) dated 22 August 2022, 7-8 [17]-[24].
Tribunal findings: The nature and seriousness of the conduct
The Applicant has committed one offence in Australia, which occurred on a single day in 2019. It is isolated and impulsive offending for which he received a sentence substantially below the 25-year maximum available. There is no evidence of offending in Vietnam.
Cultivation of a commercial quantity of a drug of dependence is an indictable offence under the Drugs, Poisons and Controlled Substances Act 1981 (Vic), and pursuant to s 72A has a maximum sentence of 25 years’ imprisonment. The Australian Criminal Intelligence Commission states that cannabis is a depressant drug causing short and long-term effects.[47] The effect of cannabis in the community has been the subject of previous commentary by the courts and this Tribunal. The Tribunal respectfully adopts the comments of Judge Bennett, then of the District Court of New South Wales, cited in Le:[48]
“There is the populist view…that cannabis is a drug of little significance without the risk of much harm. I have been engaged in the practice of law for many years; as a judge for in excess of a decade. In the course of my life as a barrister I appeared in a number of Supreme Court murder trials and related proceedings and it is the fact that cannabis is a harmful drug. It leaves people prone to schizophrenia with a risk of the development of that disease. It opens the pathway to people without necessary self-control into the drug milieu. I have not…ever seen the case where somebody addicted to heroin, cocaine or methylamphetamine did not begin their life as a drug user starting out with the misuse of cannabis, it is a dangerous drug, and those who urge otherwise are misguided.”
[47] Australian Criminal Intelligence Commission, Illicit Drug Data Report 2018-19 (September 2020) < Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3130, [31].
The Applicant engaged in serious offending and it is little to the point the drugs seized did not find their way into the community.[49] It is unchallenged, however, that his role was very minor and engaged in for a single day. The Tribunal accepts Ms Ho’s submission the offending was at the “lower end of the spectrum”. Nevertheless, imprisonment is a sentence of last resort and the most severe sanction available.[50] A custodial sentence of this duration for a first-time offender reflects the objective seriousness of the Applicant’s crime.
[49] ASFIC.
[50] See for example: Sentencing Advisory Council, ‘Imprisonment’ <
The Tribunal finds the Applicant engaged in serious offending.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction states:
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.
Clause 8.1.2(2) of the Direction states that in assessing the risk the non-citizen poses to the Australian community, decision-makers must take into account, 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).
This aspect of the Direction requires the Tribunal to assess the risk the Applicant poses to the Australian community in the event he reoffends, taking into consideration the nature of any harm and its probability. The courts have held that past actions are legitimate predictors of future behaviour.[51] The notion of risk and its nexus to future possibility were explored by Mortimer J in Murphy, where Her Honour noted:[52]
That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.
[51] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].
[52] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
Reasons for offending and remorse
The Applicant relied upon several reasons for his offending, predominantly financial. He referred to declining work for his flooring business, difficult trading conditions for Ms PB’s business, the birth of their child, and wanting to surprise Ms PB with a present.[53]
[53] Exhibit R1, 86.
The Applicant’s early plea of guilty was found by the Court to evince “a degree of remorse”.[54] He expressed remorse for his conduct several times during the hearing.
[54] Ibid, 37 [10].
Conduct in custody and on conditional liberty
The Applicant was released on bail after a five-week period on remand, during which he lived and worked in the community without incident. He has generally been a compliant prisoner and detainee. One report stated that during his remand and subsequent incarceration, he “recorded a total of nil incidents”.[55] Following that assessment, however, the Applicant accepts he consumed illicit alcohol on one occasion in January 2021, for which he received a $30 fine.[56]
[55] Ibid 81.
[56] Ibid 126-127.
Rehabilitation
The Tribunal has considered prison and other records referring to the Applicant’s work as a food packer and general hand, and the vocational courses he undertook.[57] The Tribunal has considered a letter dated 20 July 2020 regarding six Alcohol and Other Drugs counselling sessions undertaken by the Applicant between March and June 2020.[58] The Applicant gave oral evidence about what he learned during these sessions, which were delivered in Vietnamese.
[57] Ibid 78-79; 88-89.
[58] Ibid 192.
Risk
A prison report states the Applicant recorded a “Low” rating on the LSI[59] and was considered suitable for a “minimum security rating”.[60]
[59] Ibid 84; 91. Don Andrews and James Bonta, The Level of Service Inventory–Revised (Multi-Health Systems Inc. 1995). This an internationally validated actuarial tool used in custodial settings to assess an offender’s recidivism risk and identify their criminogenic needs.
[60] Ibid 92.
Expert evidence
The Tribunal has considered the report of psychologist Mr Tim Watson-Munro dated 15 April 2021,[61] which is summarised as follows:
(a) Both the Applicant and Ms PB were interviewed using telehealth facilities, in the Applicant’s case with the assistance of an interpreter.
(b) After applying the Hare Psychopathy Checklist – Revised (PCL-R), Mr Watson-Munro assessed the Applicant’s recidivism risk as “Low”. He said the Applicant was experiencing mental health issues at the time of their consultation because of an uncertain future. Mr Watson-Munro noted the Applicant was yet to see a mental health practitioner but aspired to if released. Mr Watson-Munro opined that the Applicant would “benefit from treatment to address his depression and anxiety and…further support in the community”.[62]
(c) Mr Watson-Munro noted that Ms PB told him she “would not be able to live in Vietnam” with the Applicant, because this would have a “dramatic impact” on her and their child’s life.
[61] Ibid 128-138.
[62] Ibid 136.
Mr Watson-Munro was not called as a witness and could not be cross-examined about his report, which was unchallenged by the Respondent.
Protective factors
The Applicant was considered by the Court to have positive prospects of rehabilitation because of no prior convictions, pleading guilty at an early stage, being in a stable relationship, and having a young child.[63] The Applicant referred to salutary lessons after imprisonment, stable accommodation in a house he and Ms PB own, sound employment prospects,[64] and support from his family, as motivating him to lead a law-abiding life.
[63] Ibid 40 [22].
[64] See letters of support from Emerald Timber Flooring and Delicious Asian Cuisines & Pho.
Respondent’s submissions
The Tribunal has considered the Respondent’s submissions regarding cl 8.1.2.[65]
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[65] RSFIC, 8-12 [25]-[43].
The potential harm arising from a repeat of the Applicant’s conduct encompasses physical, psychological, financial, and societal consequences. This includes direct harm to users of illicit drugs and the indirect harm caused by criminal activity linked to commercial drug production. The timely discovery and dismantling of the crop house by police prevented potentially serious consequences. The Applicant’s conduct has imposed costs on the community in terms of the investigative, judicial, and other resources required to address his crime. Although the Applicant’s offending is serious, however, the Tribunal does not accept the Respondent’s contention that it falls into a category of offending where any risk of reoccurrence is unacceptable.[66]
[66] Ibid 9 [28].
The Tribunal is concerned about the Applicant’s intoxication while imprisoned in January 2021, resulting in a $30 prison fine. It is accepted this is the only occasion he breached prison rules and has otherwise been compliant. The Tribunal accepts this was a single, isolated, and impulsive incident that he learned from.
The Tribunal accepts Ms Ho’s submission that the Applicant has not received counselling or rehabilitation regarding financial stressors. There is also an absence of evidence to corroborate the extent to which he has overcome depression and anxiety after six counselling sessions in early to mid-2020. That said, the Tribunal accepts the Applicant’s depression and anxiety were situational and arose from family separation. Moreover, Mr Watson-Munro’s recommendation is that the Applicant would benefit from exploring treatment to address any residual mental health issues, not that treatment is an essential precondition linked to reducing his already low recidivism risk.
The Tribunal accepts the Applicant has engaged in self-reflection and developed better insight into the harm caused by illicit drugs. Having regard for the oral evidence, the Tribunal also accepts the high price this family has paid after the Applicant’s isolated crime is a powerful incentive for him to remain law-abiding. He understands that any further offending will likely end his aspiration for a permanent life in Australia.
The Tribunal adopts the Court’s optimistic assessment about the Applicant’s rehabilitation prospects. It is noteworthy he has not reoffended, including while on bail for an extended period. Moreover, with the disposal of his wife’s business, strong prospects of fulltime work, and approximately $350,000 equity in their home available through a re-draw facility, the Tribunal’s concern about future financial stressors is alleviated. This is particularly so given the persuasive nature of his remorse and evidence about severing contact with negative peers. The Applicant clearly has a strong prosocial network. The circumstantial factors that may precipitate a reoccurrence of his past offence are weak at best.
Having considered the nature and seriousness of the Applicant’s offending and low risk of reoffending, this primary consideration only weighs somewhat against revocation.
Tribunal consideration: Family violence committed by the non-citizen
There is no evidence of family violence offending. This primary consideration is not enlivened and carries neutral weight.
Tribunal consideration: Best interests of minor children in Australia affected by the decision
Clause 8.3 of the Direction requires decision-makers to determine, where relevant, if revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.
In considering the best interests of the child, the Direction requires the following factors at cl 8.3(4) to be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has one biological child with Ms PB[67] and refers to an active role in the child’s life since birth. This includes providing emotional, practical, and financial support. In recent times, he has tried to maintain as prominent a parental role as his circumstances allow, predominantly through daily telephone / video calls and weekly visits.
[67] Exhibit R1, 145-146.
The Applicant states his child “can’t live in a foreign country where he won’t get any adequate health (sic) as well as education support”, because it is “extremely difficult for a 6yrs old child to have to shift to a new environment”.[68] This includes because of the child’s diagnosis with asthma in 2021. The Applicant has stated that expecting Ms PB and their child to accompany him to Vietnam on a permanent basis would be unfair because they are Australian citizens and “unfamiliar” with Vietnam.[69] At the current hearing, Ms PB said she would be unable to permanently relocate to Vietnam.
[68] Ibid 67.
[69] Ibid 86.
The Tribunal has considered the Respondent’s submissions about this primary consideration, including acceptance that the Applicant has a “very close relationship” with his child, whose best interests weigh in favour of revocation, albeit only “limited weight” should be attributed to this primary consideration.[70]
[70] RSFIC, 13 [51].
Tribunal findings: Best interests of minor children in Australia affected by the decision
The Tribunal accepts the Applicant loves his child, with whom he enjoys a strong and continuing emotional attachment. The child is very young and there are 11 years during which the Applicant could play a positive parental role before adulthood.
An adverse decision in this matter would crystalise a very difficult decision for the Applicant and Ms PB. Moving their child away from school and established family, friendship, and social networks would be extremely disruptive. Although the child understands Vietnamese, it is not hard to imagine the dislocating effects of permanent resettlement. Ms PB states she could not do this after a lifetime in Australia and does not intend to impose a new life in Vietnam on herself and the child, not least because of the comparatively better opportunities in Australia. The Tribunal accepts Ms PB’s evidence in this regard, the corollary of which is the child’s continuing separation from the Applicant and inability to maintain even the weekly visits they currently enjoy. Although it is accepted this would be a difficult personal decision for the Applicant and Ms PB to make, the adverse consequences for the child are no less profound. The Respondent’s submission is accepted that a relationship could be maintained from a distance as it currently is, but this is plainly a poor substitute for close physical contact between father and child.
The Tribunal accepts that revocation is in the best interests of the child. This primary consideration carries substantial weight in favour of revocation.
Tribunal consideration: Expectations of the Australian community
Clause 8.4(1) of the Direction provides:
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.
Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation 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. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a) acts of family violence;
(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;
(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;
(f) worker exploitation.
Clause 8.4(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.4(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case.
Clause 8.4(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court (FCAFC) in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR). Notwithstanding the different pathways in judicial reasoning, the plurality in FYBR held that Expectations of the Australian community is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[71]
[71] FYBR (2019) 272 FCR 454 (“FYBR”), at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[72]
[72] Ibid at 473 [75]–[76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[73]
[73]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
It is submitted by the Applicant that there has been a “misapplication of the law…at the nexus of the discretionary power relevant to expectations of the Australian community (sic)”.[74] The Tribunal is invited to independently assess the community expectations based on the Applicant’s specific circumstances. This includes submissions that the Australian community “would not be vengeful” towards the Applicant and inclined to give him a “fair go in light of his dignified character and the punishments already endured by him and serious, indirect punishment endured by other innocent members of his family”.[75]
[74] ASFIC 3 [5].
[75] Ibid 13 [30].
Ms Ho said that notwithstanding the Applicant’s single offence, its seriousness was such that the community would not expect him to be allowed to remain in Australia.
Tribunal findings: Expectations of the Australian community
Submissions in the ASFIC impermissibly invite the Tribunal to assess the community’s expectations on the specific circumstances of this case.[76] The Tribunal declines to do so.
[76] Clause 8.4(4) of the Direction.
The Australian community expects non-citizens to obey Australian laws and has a low tolerance for those committing serious crimes. Although a higher level of tolerance may be afforded to those who have lived in Australia for long periods, this depends on the seriousness of the crime or other conduct engaged in.
During the decade he has spent in Australia, the Applicant committed a single, albeit serious offence. This primary consideration weighs against revocation, but no higher than moderately.
OTHER CONSIDERATIONS
Tribunal consideration: International non-refoulement obligations
Clause 9.1 of the Direction provides:
(1) 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.
(2) In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8) If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non-refoulement obligations.
Section 5 of the Act defines ‘non-refoulement obligations’ non-exhaustively as including Australia’s obligations as a party to the Conventions, Protocols and Covenants listed at cl 9.1(1) of the Direction and ‘any obligations accorded by customary international law that are of a similar kind to those mentioned’ in those treaties. The term, however, “is not confined to the protection obligations to which s 36(2) refers’.[77]
[77] Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 at 35 [103].
The Tribunal must give active intellectual consideration to the Applicant’s clearly articulated representations about risk of harm, regardless of characterisation.[78] But engagement with such claims relates to whether there is another reason for non-revocation, rather than the analysis undertaken for Protection Visa applications.[79]
[78] YKSB v Minister for Home Affairs [2020] FCAFC 224, 5; Minister for Home Affairs v Omar (2019) 272 FCR 589, [34]–[44] (“Omar”).
[79] Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, [27]–[28]; Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].
As held recently by the High Court, the Tribunal is required to “read, identify, understand and evaluate” any non-refoulement representations the Applicant makes, and:
“…bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate.”[80]
[80] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (“Plaintiff M1”), [9]; [24].
The Tribunal can defer assessment of non-refoulement claims if the Applicant can apply for a Protection Visa,[81] which he is entitled to do. He has not yet done so.
[81] Ibid [30].
The Applicant did not initially advance non-refoulement claims[82] and none were discernible from his initial ASFIC or documentary evidence. In written submissions from Mr Do dated 28 August 2022, however, non-refoulement claims were included under the heading “Extent of impediments if removed” as follows:
26. The nature of Mr Nguyen’s criminal conduct presents significant impediments to his reassimilation to Vietnamese society after having spent the most important period of his life in Australia. Under Vietnamese law, conduct such as that of Mr Nguyen warrants possible execution and/or long prison sentences followed by societal discrimination.
27. There exists a real risk of harm posed to Mr Nguyen as a member of his extended family, who has demonstrated dislike for the Vietnamese government. This fact alone, coupled with Mr Nguyen’s criminal history, would leave him exposed to harassment and discrimination, including mental and physical abuse.
28. The Vietnamese government and its authorities are known for extra-judicial behaviour towards its citizens. According to the Department of Foreign Affairs and Trade, an example of this behaviour is reported as follows:
In December a family member of jailed land rights activist Trinh Ba Phuong reported prison guards physically abused him while in pretrial confinement, “taking turns harshly beating [him] over all parts of his body, including his genitals.”
The family member reported prison officials threatened to place Phuong in a cell with mental patients if he continued to refuse to confess to his alleged crime of “making, storing, or disseminating propaganda against the state.”
29. In addition to adverse information provided by the Department of Foreign Affairs and Trade in relation to the Vietnamese government’s treatment of its citizens, compelling and compassionate circumstances also exist in the need to safeguard the health and well-being of innocent members of the Australian community, this consideration weighs in Mr Nguyen’s favour.
[82] Exhibit R1, 74.
The Applicant did not advance any non-refoulement claims during the hearing, nor did Mr Do during closing submissions. When asked about this, Mr Do conceded that non-refoulement claims “cannot be articulated in any substantive way [and are] speculative”.
Tribunal findings: International non-refoulement obligations
Given the state of the evidence, Mr Do’s concession is properly made. The documentary claims dated 28 August 2022 are very recent, general, uncorroborated, and unpersuasive in circumstances where the Applicant’s own oral evidence contradicts them. To the extent the Applicant’s ASFIC dated 28 August 2022 purports to raise non-refoulement claims, these are rejected.
This consideration is not enlivened and carries neutral weight.
Tribunal consideration: Extent of impediments if removed
Clause 9.2(1) of the Direction 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.Mr Watson-Munro refers to the Applicant having depression and anxiety at the time of his offending, which is clearly a retrospective opinion. It is also claimed the Applicant continued to suffer these conditions at the time of his consultation with Mr Watson-Munro in April 2021, albeit for different reasons, and “would benefit from treatment” for this.[83]
[83] Ibid 136 [7].
The Applicant stated in documentary evidence he has no diagnosed medical or psychological conditions.[84] A prison report states that “other than suffering hay fever”, he “reported nil health or mental concerns and no medication requirements”.[85] Other reports similarly fail to make any reference to medical or psychological issues.[86]
[84] Ibid 73.
[85] Ibid 82.
[86] Ibid 180-187.
No language or cultural impediments were raised nor arise from the evidence.
The Applicant claimed that if repatriated to Vietnam, he would be unable to financially support Ms PB and their child, who intend remaining in Australia because of comparatively better healthcare, educational, and other opportunities. He said he would be unable to secure comparable work or income in Vietnam to that of Australia.
Tribunal findings: Extent of impediments if removed
The Applicant arrived in Australia at the age of 22. He is still a relatively young man at 33 and in good health.
No language or cultural impediments are apparent. The Applicant speaks Vietnamese fluently and requires an interpreter to communicate in English. He has returned to Vietnam on nine occasions since arriving in Australia, most recently in 2018, and interacts with his family and friends regularly by telephone. His mother is currently visiting him in Australia at her own expense. It is accepted, however, there may be a period of re-adaptation required after a decade spent living in Australia, including after a period in custodial settings.
Given the Applicant’s continuing closeness to immediate family members in Vietnam, there is no evidence he is unable to rely on them for some practical and emotional support if returned. He has worked for his family’s company in the past, and although claiming he would live far away from them to diminish the shame caused by his forced return, this would be self-imposed. It is open to the Applicant to continue close contact with his parents and relatives if he wishes.
There is no evidence the Applicant would be treated differently to other Vietnamese citizens in terms of social, medical, or economic support. The study and work he has undertaken in Australia can only have enhanced his skillset and there are references to him being a motivated and industrious worker. He is not impecunious, with considerable equity in the home he owns with Ms PB and some savings to draw upon if needed.
The Applicant refers to an inability to find work in Vietnam with comparable wages to Australia, which he claims would inhibit his ability to support his family here. This is not a mandatory factor under the Direction, which refers to the Applicant’s ability to maintain basic living standards in the context of what is generally available to other citizens of Vietnam.
On balance, this consideration weighs slightly in favour of revocation.
Tribunal consideration: Impact on victims
Clause 9.3(1) of the Direction states:
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.
Tribunal findings: Impact on victims
There is no evidence from victims within the meaning of the Direction. This consideration is not enlivened and carries neutral weight.
Tribunal consideration: Links to the Australian community
Clause 9.4 provides that a decision-maker must have regard to cls 9.4.1 to 9.4.2 of the Direction, which includes consideration of the strength, nature, and duration of any ties the non-citizen has to the Australian community and the impact on Australian business interests if the non-citizen is not allowed to remain in Australia. In terms of the latter, the Tribunal has considered Mr Do’s contention that an acute shortage of tradespeople in the Australian building industry, is such that business interests will be “affected by the decision to remove [the Applicant] from the workplace”. This contention is not accepted. There is no evidence to displace the presumption in the Direction that this consideration is only enlivened where a non-revocation decision ‘would significantly compromise the delivery of a major project, or delivery of an important service in Australia’.
Clause 9.4.2 of the Direction carries neutral weight.
Tribunal consideration: The strength, nature, and duration of ties to Australia
Clause 9.4.1 of the Direction provides:
(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 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.
The Applicant has lived in Australia for about a decade and claims to have a “strong familial and social support network”.[87] A table is provided stating his “family composition” in Australia consists of Ms PB, their child, and Ms PB’s parents and sister.[88] He is closest to Ms PB who is an Australian citizen and relies on him for practical, emotional, and financial support. This includes for their child’s needs, to help manage Ms PB’s health after a goitre diagnosis, and also to help look after Ms PB’s grandmother. For the reasons adduced earlier, Ms PB does not feel able to relocate to Vietnam with the Applicant if he is repatriated.
[87] ASFIC dated 6 August 2022, 10 [22].
[88] Ibid, 4 [7].
The Applicant has made other close friendships in Australia as disclosed by several references.[89] It is clear he enjoys strong support from family and others who attended the hearing to support him.
[89] Ibid 177-178; 191.
The Applicant’s family live in Vietnam[90] and his mother is currently visiting to offer support. His Vietnamese family members do not fall within the meaning of this consideration.
[90] Exhibit R1, 70.
The Applicant referred to five years of work in Australia and paying taxes,[91] which was unchallenged. It was also unchallenged that he accompanies Ms PB to church and engages in the life of their ethnic community.
[91] Ibid 72.
Tribunal findings: The strength, nature, and duration of ties to Australia
The Applicant has established a strong network of family and friends in Australia who offer him emotional, practical, and financial support. The Tribunal accepts these family and friends fall within the meaning of the Direction.
The Applicant did not start offending soon after arriving in Australia and has only committed a single offence. He has made positive contributions through work, paying taxes, and engaging in the life of his ethnic community.
On balance, this consideration weighs substantially in favour of revocation.
Additional considerations
Continuing punishment?
The Tribunal can deal with any number of issues raised under the non-exhaustive list of other considerations at cl 9(1) of the Direction. One such issue is repeated submissions on the Applicant’s behalf that the visa cancellation power is “punitive” in nature and continues his judicial punishment, including on those closest to him.[92] This contention is rejected.
[92] ASFIC dated 6 August 2022, 4 [6], 7 [15], 14 [33]; ASFIC dated 28 August 2022, 5 [14].
The Act provides for legal, administrative detention of unlawful non-citizens, through powers that are executive and non-punitive in nature.[93] Executive detention does not punish for past offending nor constitute an exercise of judicial power.[94] The Tribunal rejects the Applicant’s reliance on Guden v The Queen [2010] VSCA 196 (“Guden”) and his contention that an inability to remain in Australia is a “significant punishing consequence”[95] attracting weight in favour of revocation. Guden is distinguished by its facts and relates to plea submissions in mitigation of sentence. It was submitted to the Court that the imposition of a 12-month sentence of imprisonment or more would inevitably lead to Mr Guden’s return to Turkey. Guden was in a judicial setting and in an entirely different context.
[93] O’Keefe v Calwell (1949) 77 CLR 261, 278; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, [33]; Al-Kateb v Godwin (2004) 219 CLR 562, [1] (Gleeson CJ); Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 610 [74]; Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333, [29]; [48]; [88]; [93]–[94]; [96] (Nettle J).
[94] VNPC v Minister for Immigration [2022] FCA 921, [19].
[95] ASFIC, 12 [last dot point].
No weight is placed on this consideration.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to the specific circumstances of this case. The Tribunal sees no reason to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
The Applicant engaged in a single, isolated, but serious offence. In the specific circumstances of this case, the primary considerations Protection of the Australian community and Expectations of the Australia community weigh against him, but not heavily.
The interests of the Applicant’s child are compelling. Both Ms PB and the child have established lives in Australia and separation from the Applicant will make their continued life as a family extremely difficult. Ms PB would have to shoulder a significant burden alone, by caring for their child, her elderly grandmother, and several other imperatives.
Of the other considerations enlivened in this matter, the Applicant would only be confronted with slight impediments if returned to Vietnam. Of greater consequence is the close family, work, and social connections he has established in Australia, which would be lost or substantially degraded in the event of an adverse decision.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked. Although this is a finely balanced decision because of the Applicant’s serious offending, the primary consideration Best interests of minor children in Australia and the other considerations Extent of impediments if removed, and Strength of ties, outweigh the two primary considerations Protection of the Australian community and Expectations of the Australian community.
DECISION
It follows that the Tribunal sets aside the decision under review and substitutes a decision that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
I certify that the preceding one hundred and twenty paragraphs (120) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
................[sgd]........................................................
Associate
Dated: 7 September 2022
Date of hearing: 1 and 2 September 2022 Advocate for the Applicant: Mr Quan Do
Solicitors for the Applicant: Endless ILA Pty Ltd Advocate for the Respondent:
Solicitors for the Respondent:
Ms Gabrielle Ho
Clayton Utz
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