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

Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 254 (18 February 2021)
Division:GENERAL DIVISION
File Number: 2020/8004
Re:Tuan Linh Nguyen
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:18 February 2021
Place:Melbourne

The decision of the Respondent dated 27 November 2020 not to revoke the mandatory cancellation of the Applicant’s Class BS Subclass 801 (Partner) visa under s 501CA(4) of the Migration Act 1958 (the Act) is set aside and substituted with a decision that there is another reason why the mandatory cancellation pursuant to s 501(3A) of the Act should be revoked.
......[sgd]..................................................................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION – mandatory visa cancellation – citizen of Vietnam – Class BS Subclass 801 (Partner) visa – single instance of offending – failure to pass character test – another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
18 February 2021
BACKGROUND

In an application dated 4 December 2020, Mr Nguyen seeks review of a decision by a delegate of the Respondent Minister dated 27 November 2020 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of his Class BS Subclass 801 (Partner) visa pursuant to s 501(3A) of the Act.
Mr Nguyen is a 30-year-old citizen of Vietnam who originally arrived in Australia in 2013 on a student visa at the age of 23. Mr Nguyen did not maintain enrolment in a course of study as required by the conditions of this visa. He married his wife, Ms Tram Vu, in 2014 and their daughter (‘R’) was born in April 2015. Mr Nguyen obtained a permanent partner visa on 20 February 2018.
On 21 February 2020, Mr Nguyen’s visa was cancelled by a delegate of the Minister under s 501(3A) of the Act. This mandatory cancellation decision was made on the basis that: Mr Nguyen had a substantial criminal record and therefore failed the character test under
s 501(6)(a); the substantial criminal record took the form of a sentence of imprisonment of 12 months or more under s 501(7)(c); and, he was also, at the time, serving a sentence of imprisonment.
Mr Nguyen’s offending history takes the form of a single instance, being his involvement in the cultivation of a cannabis crop. He was arrested on 24 December 2018 and convicted in the County Court at Melbourne of the charges of cultivating a commercial quantity of a narcotic plant and dealing with the suspected proceeds of crime. Mr Nguyen was sentenced on 18 September 2019 to a total of 46 months’ imprisonment with a non-parole period of two and a half years. The sentence for the summary offence was served concurrently with the sentence for cultivation.
At the time of the hearing Mr Nguyen was still in custody and he appeared by video link. He was legally represented. The hearing took place on 4 and 8 February and closing submissions were made on 9 February. Evidence was given by Mr Nguyen, his wife, and his mother-in-law, Mrs Thi Sang Pham, with the assistance of a Vietnamese language interpreter. Evidence was also given by Mr Patrick Newton, Clinical and Forensic Psychologist.
The Respondent lodged G documents and a Statement of Facts, Issues and Contentions (SFIC). Supplementary G documents were lodged but were not relied upon at the hearing. The Respondent tendered at the hearing the Reasons for Sentence, dated 20 April 2013, in respect of the conviction of the Applicant’s wife Ms Vu in relation to her own offending for cannabis cultivation (Exhibit R1).
Mr Nguyen lodged a SFIC and the following statements and other materials were admitted as evidence at the hearing:
(a)Statement of Tuan Linh Nguyen, dated 21 October 2020 (Exhibit A1);
(b)Statement of Tuan Linh Nguyen, dated 28 January 2021 (Exhibit A2);
(c)Bundle of education certificates including Prisoner Education Summary Report (Exhibit A3);
(d)Bundle of gambling addiction materials including letter of Senior Clinician concerning drug and alcohol treatment program eligibility (Exhibit A4);
(e)Bundle of materials regarding cannabis comprising article from The Lancet ‘Drug harms in the UK: a multicriteria decision analysis’, November 2010, and Explanatory Statement for Drugs of Dependence (Personal Cannabis Use) Bill Amendment 2018 (ACT) (Exhibit A5);
(f)Statement of Thi Ngoc Tram Vu, dated 21 October 2020 (Exhibit A6);
(g)Statement of Thi Ngoc Tram Vu, dated 28 January 2021 (Exhibit A7);
(h)Letter from King’s Park Primary School, dated 2 February 2021 (Exhibit A8);
(i)Statement of Thi Sang Pham, dated 1 February 2021 (Exhibit A9);
(j)Medical Summary of Thi Sang Pham as at 1 February 2021 (Exhibit A10);
(k)Report of Mr Patrick Newton, Clinical and Forensic Psychologist, dated 28 January 2021 (Exhibit A11); and
(l)Extract from website of Sandra Nguyen, Psychologist (Exhibit A12).
Exhibits A8 and A10 were lodged with the Tribunal on 3 February 2021, and were received into evidence on 8 February 2021. The hearing schedule, split over non-adjacent days, was set at the request of the parties in advance of the hearing due to issues of availability. This schedule therefore facilitated the reception of the material lodged on the day prior to the commencement of the hearing, which I may otherwise not have been able to consider due to the operation of s 500(6H) and s 500(6J) of the Act.[1]
[1] These provisions establish what is known as the ‘two-day’ rule which ordinarily precludes the consideration of written material, and evidence not reduced to writing, unless provided to the Respondent at least two business days before the hearing.
The issue of Ms Vu’s own history of offending is a matter of relevance for a number of reasons. As will be seen from the evidence, it concerns the nature of the relationships between the family members, including Mr Nguyen’s role with respect to his daughter. It also forms part of the background to circumstances of Mr Nguyen’s own offending. In particular, Ms Vu herself served a sentence of imprisonment which ended on 28 December 2018. Further, the sentencing remarks in relation to her imprisonment (Exhibit R1) were provided to Mr Newton to inform his assessment of Mr Nguyen.
LEGISLATION
The Act allows for the mandatory cancellation of visas under a number of circumstances. Under s 501(3A) of the Act, the Minister must cancel a visa granted to a person if the person does not pass the character test because they have a substantial criminal record, and are serving a sentence of imprisonment. A person does not pass the character test under s 501(6) of the Act on the basis of having a substantial criminal record, which, under s 501(7), includes when the person has been sentenced to a term of imprisonment of 12 months or more.
A mandatory cancellation decision may be revoked under s 501CA(4) of the Act if the Minister is satisfied that either the person passes the character test, or there is another reason why the decision should be revoked. The range of other reasons that might be considered is not specifically defined, but under s 499(2A) of the Act, a decision-maker must comply with Direction No. 79 ‘Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA’ (the Direction).
The Direction contains a statement of objectives and provides both general guidance and principles that are described as a framework within which decision-makers should approach the task of deciding whether or not to revoke a mandatory cancellation. Part C of the Direction is applicable to revocation decisions, and sets out in section 13 the following primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct, which in turn involves consideration of:
(i)The nature and seriousness of the conduct;
(ii)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Section 14 of the Direction also sets out a number of other considerations which include, but are not limited to:
(a)International non-refoulement considerations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
The Direction provides: these primary and other considerations may weigh either in favour of, or against, revocation of mandatory cancellation (paragraph 8(3)); primary considerations should generally be given greater weight than other considerations (paragraph 8(4)); and, one or more primary considerations may outweigh other primary considerations (paragraph 8(5)).
The Direction provides (paragraph 6.2(1)) that certain stated principles ‘are of critical importance’ in furthering the objective of protecting the Australian community. These principles ‘reflect community values and standards with respect to the determination of whether the risk of any future harm from a non-citizen is unacceptable’. The Principles as set out in paragraph 6.3 are as follows:
(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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
CONSIDERATIONS
The national criminal history check for Mr Nguyen (G3) confirms that he was convicted and sentenced in respect of cultivation of a commercial quantity of cannabis, and for this offence was sentenced to three years and ten months imprisonment, which he was still serving at the time of the hearing.
I am therefore satisfied that Mr Nguyen fails the character test, and I must now consider whether there is another reason why the resulting mandatory cancellation of his visa should be revoked.
Primary Considerations
Protection of the Australian community
In describing this Primary consideration, the Direction states as follows (paragraph 13.1(1)):
When considering protection of the Australian community, decision-makers should have regard to the principle 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
The nature and seriousness of the non-citizen’s conduct to date
In considering the nature and seriousness of Mr Nguyen’s conduct, the Direction requires me (paragraph 13.1.1(1)) to have regard to a number of factors including, relevantly, the sentence imposed, and the frequency of offending.
Mr Nguyen plead guilty to the offences for which he was charged. The Reasons for Sentence of His Honour Judge Tinney of the County Court, dated 18 September 2019 (G4), include the following findings and statements relevant to this consideration:
(a)the maximum penalty for the cultivation of a commercial quantity of cannabis is 25 years’ imprisonment, and the summary offence of possession of property suspected of being the proceeds of crime carries a two-year maximum sentence;
(b)Mr Nguyen was arrested at a property having a sophisticated hydroponic cannabis set up with a total weight of cannabis found of just under 80 kg, comfortably reaching a commercial quantity;
(c)items found at arrest indicated Mr Nguyen had some connection with those who had set up the house and, while the account initially given to police was ‘ridiculous’, this was not an aggravating matter;
(d)Mr Nguyen gave evidence that he attended the property on no more than five occasions having been asked to clean the property and check that it was okay, and was offered $500 per attendance;
(e)a co-accused who was arrested at the same time appeared to have some connection to another crop at another premises, and Mr Nguyen’s wife was, at the time of his offending, in custody for cultivation of cannabis;
(f)it was submitted that the offending was motivated by financial need, although no evidence of need was advanced, and Mr Nguyen was living in a house owned by his wife;
(g)Mr Nguyen plead guilty at the earliest possible stage and took responsibility for his offending which was taken into account in mitigation, as was ‘some level of remorse’;
(h)Mr Nguyen offended as a mature and intelligent man, but time in custody would have a deterrent role and His Honour considered him to have a relatively low risk of reoffending, with good prospects of rehabilitation either in Australia or Vietnam;
(i)some weight was given to the increased custodial burden arising from the risk of deportation following visa cancellation;
(j)due to the responsibilities apparently being undertaken, and the fact Mr Nguyen’s wife was in custody for a similar offence, therefore Mr Nguyen must have gone into the venture with ‘eyes wide open’, taking a calculated risk;
(k)Mr Nguyen knew he was embarking on a ‘very serious crime’ which was a ‘highly elaborate, highly organised criminal activity’, and being prepared to be involved in the management and cultivation of crops was a necessary role in an illegal profit-making venture;
(l)it was appropriate to moderate the weight given to specific deterrence as well as to community protection, but general deterrence ‘is a very significant purpose of sentencing in cases such as these’;
(m)His Honour rejected the submission that Mr Nguyen was a ‘mere crop sitter’ and his role was accepted by his own counsel as falling at ‘mid level’, the crop was ‘sizeable’ by any measure being ‘well over’ two times commercial quantity by plant number, and three times by weight;
(n)a term of imprisonment is ‘almost unavoidable’ as cultivation of a commercial quantity of cannabis is a serious and prevalent crime; and
(o)in the absence of the guilty pleas, the sentence would have been six years’ imprisonment with a non-parole period of four and a half years.
In his first statement (Exhibit A1) Mr Nguyen states that his offending was driven by financial need arising from gambling debts. He also states that he did not mention this to his criminal lawyer ‘because I was scared that this would cause difficulties and shame for my family’. Mr Nguyen states that he was asked by a work colleague to assist with the cultivation after his colleague became aware of his situation. Mr Nguyen states that he refused at first, but as time went on he could not see a way out of his financial problems and decided to participate.
At the hearing Mr Nguyen stated that:
(a)he returned to live in Melbourne when his wife went into custody in April 2018, following a period of separation from Ms Vu lasting approximately six months during which time he lived primarily in Sydney;
(b)R spent half a week in prison with Ms Vu and half a week outside at which time he considered himself the primary carer for R, but his daughter found the visits to prison distressing;
(c)he was resident at the home owned by his wife and resided with R and his mother-in-law;
(d)he worked in a butcher shop and as a handyman and was responsible for paying mortgage payments of approximately $1400 per month, as well as bills and other outgoings;
(e)he got into gambling when a friend asked him to come along, he was sad and it distracted him;
(f)Mr Nguyen played poker machines at several nearby TAB clubs, initially every month and gradually increasing to once to twice weekly;
(g)he gambled $300–400 at a time, paid initially from his wages, and then started borrowing from friends to pay for gambling;
(h)he got to know a person at a TAB who introduced him to the cannabis cultivation scheme and while he at first rejected the idea, he later accepted because of his debt and said he was not thinking carefully at the time;
(i)Mr Nguyen did not realise at the time he had a gambling problem and only the creditors and himself knew; he did not tell anyone because he was ashamed; and
(j)he was told the job was a simple task involving paying bills and looking after the plants and he first attended the house around three weeks prior to his arrest.
In cross-examination Mr Nguyen stated:
(a)he initially gambled with a friend and then on his own and R stayed with his mother-in-law for these periods, which were between a half hour and one hour long;
(b)his debts totalled about $3,000–4,000 from gambling plus a ‘couple of thousand’ in utility bills, he was unable to meet this from his income and was concerned that his wife might find out on her release from prison;
(c)he owed about $500 to the colleague from work named in his statement;
(d)at the time of the hearing he still owed about $1,000 to close acquaintances who have told him not to worry about the money, and his wife had helped deal with the total outstanding debt;
(e)he acknowledged going through the experience of his wife’s offending for the same kind of activity when becoming involved in the crop house, and said this ‘was so stupid’ and he was ashamed;
(f)he did not realise the risk his behaviour carried for R until he entered prison, even though he was her primary carer at the time; and
(g)he knew he was addicted to gambling by the time of his arrest but did not know there were counselling services or that he needed help.

The following submissions are made in the Applicant’s SFIC:
(a)Mr Nguyen was not the principal of the cultivation venture and was not solely responsible;
(b)legislative reform, for example in the Australian Capital Territory (ACT), indicates there is a changing community attitude to the harm from cannabis, which research indicates is ‘not a particularly harmful substance’;
(c)published research has ranked cannabis as less harmful than a number of other legal and illegal drugs (alcohol, heroin, crack cocaine, methamphetamine, cocaine, and tobacco); and
(d)Mr Nguyen’s offending was unquestionably serious, but ‘not unqualifiedly so’.
At the hearing, Mr Nguyen’s representative stressed that it was not submitted that his offending was trivial, which is clear from the maximum penalty applying to cultivation. It was submitted, however, that Mr Nguyen’s moral culpability was significantly mitigated by his gambling disorder. It was also submitted that harm to the community should be understood in the context of where cannabis sits in relation to other harmful substances (as supported by the references contained in Exhibit A5). Cannabis was not ‘the worst of the worst’ and this perspective, and moves toward legalisation, assist in understanding the social cost of Mr Nguyen’s offending.
The Respondent’s SFIC includes the following submissions, also reflected in the oral submissions at the hearing:
(a)Mr Nguyen was a first-time offender but nevertheless received a term of imprisonment of 46 months and the sentencing judge would have imposed a term of six years, with four and a half years’ non-parole period, in the absence of a guilty plea;
(b)commercial cultivation of cannabis imposes significant costs on the community and Mr Nguyen frustrated the investigation by providing an untruthful initial account to Police; and
(c)his conduct should be regarded as very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Direction provides that in considering this risk, decision-makers must have regard, cumulatively, to (paragraph 13.1.2(1)):
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative course to be undertaken).
In his first statement (Exhibit A1), Mr Nguyen makes the following statements with respect to his background and employment:
(a)growing up in Vietnam his parents pursued a number of different jobs and became small business owners. Mr Nguyen attended the University of Communications and Transport in Hanoi and attained a degree and then employment in telecommunications in which he installed phone lines (‘cabling’);
(b)he then worked in his family business and his parents wanted him to go to Australia to further his education, with a view to returning to Vietnam to secure a good job;
(c)he did not complete his English course on arrival in Australia because it was too difficult for his parents to finance, and he also realised his parents owed a lot of money, so he decided to find employment and moved from Sydney to Melbourne to do so;
(d)he worked in ‘many different jobs’ including several jobs in chicken de-boning, one in a shop in Ballarat, and prior to his arrest in December 2018 worked for approximately six months as a handyman and in home renovation;
(e)when released from prison and if permitted to remain in Australia, he ‘will use the knowledge that I have learned in prison to get a decent and honest job’. He has completed courses including cleaning, food handling and safety, workplace safety, and has commenced warehouse studies and hopes to undertake construction studies. Some training opportunities have not been available due to his limited English; and
(f)he asked to attend a drug rehabilitation course on the advice of other inmates but was not eligible, and has worked in the laundry, factory and cleaning team in prison.
In his second statement (Exhibit A2) Mr Nguyen states:
(a)in 2017, his relationship with his wife became strained due to her impending criminal trial and they agreed to give Ms Vu some space. Mr Nguyen moved to Sydney to work as a handyman between October 2017 and April 2018;
(b)during this time, he spent one out of every four weeks in Melbourne and after two or three months the couple reconciled. In his mind they were always in a committed relationship and re-committed prior to her prison term commencing on about 20 April 2018 and Mr Nguyen leaving Sydney;
(c)since making his first statement, Mr Nguyen has contacted gambling addiction services with regard to programs he can participate in when released, and that he has been unable to access such assistance in prison;
(d)he has disclosed his addiction to his wife, and on release has ‘no desire to engage in gambling and that kind of behaviour’. He plans to get a job initially in his prior trade of chicken boning and then in construction, and he would like to improve his English;
(e)he has very strong incentives not to re-offend, has no desire to offend, is ashamed of his behaviour and has let his family down;
(f)it is extremely important that he remain in Australia for R, and for his marriage and family life, including with his mother-in-law; and
(g)he would like a second chance, and to make up for the pain he has caused his family and the community.
In evidence Mr Nguyen also stated that:
(a)learning programs in prison had been suspended during COVID-19;
(b)his solicitor had helped him to find out what gambling programs were available outside prison, although he was not sure about the languages they are in. He would ‘have to check out’ a gambling self-exclusion program because he knows gambling is a vice that leads to damage to his family and the community;
(c)he feels shame and remorse about his offending and that everyone looks down on him. He did not think about damage to the community when deciding to offend previously;
(d)if permitted to remain in Australia he will participate in gambling courses and counselling;
(e)he is eligible for parole in four to five months and applied for parole some time ago but does not know the outcome;
(f)in future he wishes to play a role in R’s life including leading her in her education, as well as remain in his relationship with his wife, who he talks to often, and with his mother-in-law, and contributing to the mortgage payments; and
(g)in response to a question from myself, that all his employment in Australia had been cash-in-hand and he had no records with regard to his employment history.
In cross-examination Mr Nguyen stated that:
(a)he moved to Sydney out of respect for his wife’s wishes, even though it meant separation from his daughter, and therefore he called R often and returned to Melbourne regularly;
(b)during the first months of the physical separation, he and his wife did not sleep in the same room during the week each month that he stayed in Melbourne, but resumed marital relations prior to his return from Sydney;
(c)he did not return to Melbourne when reconciliation occurred because the Sydney weather was better and he had hoped the family could come to Sydney to live. This appeared to be an option as Ms Vu’s solicitor had indicated that she may not go to jail. His return was prompted by his wife’s jail term and his wish to care for his daughter;
(d)he understood that drug use shatters families, causes them to fall apart and leads to community damage;
(e)Mr Nguyen knew he had a problem with gambling prior to his arrest but did not know there were programs that could assist, and did not know that he needed help. His realisation about addiction and services has only arisen during his time in prison; and
(f)that his lawyers had provided information about services available on release but he has not yet been given or accessed information about gambling addiction. This is the first thing he would do on release.
In her first statement and second statements (Exhibits A6 and A7) Ms Vu states that:
(a)it is important for Mr Nguyen to remain in Australia to help with R, to care for her mother, and to contribute financially as she currently only works part time and receives Centrelink benefits;
(b)she does not know what she would do without her husband in Australia and he is deeply ashamed of his offending;
(c)prior to her prison sentence, which was between 20 April 2018 and 28 December 2018, she was depressed, shut down and stopped communicating with Mr Nguyen, and everyone else; and
(d)Mr Nguyen found work in Sydney and returned every three weeks, they recommitted to their relationship when he came back in April 2018, and they had a happy marriage overall.
In her evidence at the hearing, Ms Vu stated as follows:
(a)she owns a property and this was where she lived initially with Mr Nguyen and with her daughter when R was born;
(b)the marriage was happy and joyful until R was about one year old, at which time the family moved into the home occupied by her mother and step-father;
(c)her offending was in relation to cannabis cultivation which took place in her property. Mr Nguyen did not know about this activity;
(d)during a period of remand lasting three weeks, Mr Nguyen and her mother looked after R. The family returned to her property and things were normal at first, but she later came under a lot of stress because of her criminal case and became very sad;
(e)there were a number of arguments with Mr Nguyen and they did not talk to each other. There was a temporary separation around October 2017 and Mr Nguyen moved to Sydney;
(f)prior to her sentence being passed, Mr Nguyen returned to Melbourne because he knew he had to look after R when Ms Vu entered prison; and
(g)she did not know about Mr Nguyen’s gambling until he told her when he was already in prison.
In cross-examination Ms Vu stated that:
(a)her own offending occurred when she was asked by a neighbour to grow cannabis. She did so because she was asked, her neighbour ‘spoke to her in a gentle manner’, she was told it would not harm anyone, and that it was a medicinal plant;
(b)Ms Vu only knew she was doing something wrong when arrested. When told the sentencing judge found that she did know her offending was wrong, Ms Vu stated that she was very confused on the sentencing day, had already told everything to the Police, and accepted her wrongdoing;
(c)Ms Vu stated that she spent $5,000 to fund the set-up in her house and apart from being asked by her neighbour, wanted to pay off a debt of a ‘few thousand’ dollars which was owed in Vietnam;
(d)she was unable to recall clearly the visits by Mr Nguyen back to Melbourne during his time in Sydney; she was suffering severe depression and only recalls this time vaguely; and
(e)it took some time for the reconciliation with Mr Nguyen to occur which is why he did not return to Melbourne until prior to going to prison. Asked why she told the court prior to her sentencing that she had no contact with her husband and why she did not inform her lawyers this was not accurate, Ms Vu stated her lawyer did not contact her and she only appear at her sentencing hearing.
On re-examination, Ms Vu stated that she was not present at her sentencing hearing. Ms Vu stated that she thought the amount outstanding on her mortgage was about $320,000 and that she currently pays $1,680 a month in repayments. She is not aware of what steps might have been taken in respect to confiscation of the property. Ms Vu considered it would be very difficult to maintain mortgage payments in Mr Nguyen’s absence.
I note the following relevant statements from the remarks of the sentencing judge in Ms Vu’s case (Exhibit R1):
(a)Ms Vu plead guilty after a contested committal to a summary charge and to a charge of cultivating cannabis in a commercial quantity, the cultivation taking place between May and August 2016;
(b)police were alerted to the cannabis crop and on attendance found a sophisticated set up in two bedrooms and a garage. The number of plants was well short of a commercial quantity but the net weight was 90kg where a commercial quantity is defined as 25kg;
(c)His Honour accepted that Ms Vu told Police that her motivation was to make money. He did not accept that Ms Vu did not understand the significance of what she was doing, stating that, while falling below mid-range offending, she was the owner and funder of the enterprise, and her moral culpability was high;
(d)His Honour understood that Ms Vu was separated and R had no relationship with her father (Mr Nguyen). Her inability to care for R if sent to prison was a significant issue during the plea hearing;
(e)Ms Vu’s prospects for rehabilitation were excellent and her home would almost certainly be confiscated, over which there is a restraining order. This fact alone would have a deterrent effect;
(f)a psychological report tendered included a diagnosis of Major Depressive Disorder, and Ms Vu suffered depression since her ‘marriage breakup’; and
(g)it was appropriate to impose a sentence of imprisonment of nine months in combination with a community corrections order for two years following prison. Without a guilty plea, a sentence of five years imprisonment and non-parole period of three years would have been imposed.
In his report (Exhibit A11) Mr Newton addresses a number of issues and, relevantly to this primary consideration, provides his professional opinion on Mr Nguyen’s current psychological condition, and an assessment of risk to the Australian community of Mr Nguyen committing further offences. In summary, Mr Newton reports the following key observations:
(a)Mr Nguyen is suffering from an adjustment disorder with mixed anxiety and depressed mood. This diagnosis arises primarily from ‘obsessive rumination on his culpability and the consequences which his family have faced as a result of his conduct’ and also from concern about possible separation from his family were he to be returned to Vietnam;
(b)based on the history provided by Mr Nguyen, he suffered a ‘pathological gambling problem from 2018 until his arrest … in 2019’. Mr Nguyen became increasingly reliant on gambling to manage stress and loneliness at a time of increased parental responsibility. This condition was sufficiently severe to meet the clinical criteria for a gambling disorder;
(c)using a ‘Risk-Needs-Responsivity’ framework and assessing Mr Nguyen in the category of ‘general offending’, Mr Nguyen presented as at a low risk of recidivism. Mr Nguyen was assessed as presenting with only one ‘strong’ current recidivism factor, being his criminal history, and no ‘moderate’ current recidivism factors;
(d)Mr Nguyen’s past offending was contextualised by difficulties with his marriage and family leading to the use of gambling as a way to manage distress, making him vulnerable to the influence of criminal associates, but these issues have largely resolved with the passage of time; and
(e)two key issues remain for Mr Nguyen, being that he follow through with tentative steps taken to address his gambling, and that both Mr Nguyen and his wife were convicted in ‘near contemporaneous circumstances’. Not having assessed Ms Vu, Mr Newton was unable to form a view about any criminogenic risk she may pose to Mr Nguyen.
At the hearing Mr Newton gave evidence consistent with this broad outline of his report. Mr Newton stated:
(a)that he had particular experience in the area of gambling addiction starting over 25 years ago in a role as a postgraduate psychologist with Gambling Helpline, and continuing with consultations with patients currently;
(b)it is very common for patients to feel embarrassment and shame arising from their gambling but Mr Nguyen’s failure to explain his situation to his legal representatives during the criminal process was ‘relatively rare’;
(c)he agreed that his assessment of low risk was consistent with the remarks of the sentencing judge, which he had read in detail, and there is no lower category available;
(d)Mr Nguyen was very keen to express his views including his deep shame and rumination on his culpability and being upset at separation from his wife, whom he spoke warmly of, and from R;
(e)on the assumption that Mr Nguyen was granted parole, the two key elements would be provision of appropriate intervention, and provision of supervision and oversight to ensure compliance with any treatment to ensure reduced chance of recidivism;
(f)if parole were not available, there are multiple programs available to Mr Nguyen in the community, as well as private psychologists and Mr Newton understood that Mr Nguyen had also explored a ‘self-exclusion’ approach to gambling; and
(g)when the material relating to Sandra Nguyen (Exhibit A12) was admitted at this point, Mr Newton stated he was not familiar with this specialist but considered that there were a number of similarly appropriate providers available.
In cross-examination Mr Newton gave the following evidence:
(a)the financial basis of Mr Nguyen’s offending was a secondary factor and its influence on recidivism would depend upon Mr Nguyen’s employment skills, his social networks and coping skills. As none of these are well-developed in his case, they have the potential to elevate the level of risk;
(b)the restoration of the marriage provides Mr Nguyen a primary support and, while he has undertaken some training courses, there remains work to be done, and this is why parole is so important in his case;
(c)with reference to the positive engagement stated in his report that Mr Nguyen now has with leisure and recreational activities, this reflects Mr Nguyen’s determination to mitigate the role of gambling as a dysfunctional response to his situation. He understood Mr Nguyen had expressed interest in volleyball and soccer and would like to engage in more recreational activities;
(d)should Mr Nguyen return to Vietnam, it would be prudent for him to monitor his mental health but as a developing economy he considered that typically a person with a condition of ‘low-to-moderate’ severity would not be prioritised; and
(e)one of the things Mr Nguyen values most is his role in caring for R and, as parenting has its stresses, it is important Mr Nguyen’s coping strategies be well-developed.
It is submitted in the Applicant’s SFIC that:
(a)the sentencing judge took account of Mr Nguyen’s guilty plea, level of remorse, and rehabilitation prospects;
(b)the sentencing judge was not aware of the full context of the offending, not being informed about Mr Nguyen’s gambling addiction;
(c)the pressures of Ms Vu’s incarceration and his own gambling addiction are no longer present; and
(d)if released on parole, Mr Nguyen will benefit from support during his reintegration into the community, and has undertaken training, and has plans for his future employment.
At the hearing it was further submitted on the Applicant’s behalf that on the basis of the expert evidence as to Mr Nguyen’s low risk of reoffending, he is at the lowest level of risk. His offending was also only based on three weeks of criminal conduct, he has expressed remorse, and is otherwise of good character and has no other convictions.

In the Respondent’s SFIC it is submitted that:
(a)given Mr Nguyen’s level of knowledge about the crime prior to becoming involved in the cultivation offending, there is a risk that he may reoffend if permitted to remain in Australia;
(b)this kind of offending is harmful to the health and wellbeing of the community, illicit drugs undermine Australian law, organised crime has social implications for the community, and an impact on legal, judicial and corrections resources; and
(c)recent legal reform in the ACT does not alter that fact that in both Victoria and the ACT the cultivation of a commercial crop of cannabis remains a serious offence.
At the hearing it was further submitted on the Respondent’s behalf that:
(a)Mr Nguyen may not have been aware of Ms Vu’s own offending at the time, but was well aware before his own offending conduct of the penalties and impact of his offending and this knowledge did not function as a deterrent;
(b)the formal assessment of the risk of reoffending is low, but there is an assumption in the Applicant’s submission that either parole will be granted, or that Mr Nguyen will independently address the residual gambling addiction issue;
(c)Mr Nguyen’s own evidence indicates that he had not researched or read anything relating to treatment of a gambling addiction, albeit he had made some inquiries;
(d)accordingly, there has been limited opportunity for Mr Nguyen to demonstrate any rehabilitation, and his level of engagement with services through parole processes or independently is somewhat speculative given his need and desire to make a contribution to his family; and
(e)any evidence about legal reforms in relation to personal use of cannabis does not address the issue of the social and economic cost of commercial drug crimes.
Conclusion
In conclusion, it is submitted on the Applicant’s behalf that this first primary consideration should weigh in favour of revocation. On the Respondent’s behalf it is contended that this primary consideration should weigh in favour of affirming the decision under review.
I consider Mr Nguyen’s criminal offending to be, objectively, serious offending. His apparently limited involvement with the enterprise should be understood in the context of this kind of offending (so-called ‘crop sitting’), as outlined in the sentencing remarks. That is, this was a substantial criminal activity and Mr Nguyen’s role could not be considered marginal. The sentence arrived at, and that proposed in the absence of a guilty plea, indicate the relative seriousness of the offending.
Moreover, as noted by the sentencing judge, Mr Nguyen entered into this course of conduct with his eyes wide open, in full knowledge of the nature and consequences of the crime based on Ms Vu’s experience. He also engaged in the offending at a time when he bore not insubstantial parenting responsibilities while his wife was incarcerated.
While this speaks to a degree of recklessness on Mr Nguyen’s part, the explanation now given is that his financial need was driven by an addiction. This addiction has been formally diagnosed, albeit the evidence indicates that Mr Nguyen’s full awareness of his condition is also a quite recent revelation. There is no other concrete or independent evidence of any kind provided to support his gambling habit, however, I do have his own evidence on which, absent contradiction, I must place some adequate weight.
This explanation is said, by Mr Nguyen’s representative, to reduce moral culpability of a kind of offending that is, in any event, of somewhat reduced community concern. It was also addressed in the context of the consideration of risk to the community. That is, Mr Nguyen has been assessed by Mr Newton as being at low risk of further offending. This professional opinion reflects that of the sentencing judge.
Low risk does not mean ‘no’ risk, but I accept that there is no lower categorisation available in the framework used by Mr Newton. It has been submitted that the low risk which Mr Nguyen may present can be mitigated through participation in appropriate programs. On balance, I am not strongly persuaded that Mr Nguyen is entirely conversant with these programs. However, much of this is a consequence of his incarceration. I accept that some effort has been made by those representing him to identify what he can do in the future, and that he has given evidence of his willingness to address any ongoing impact of his addiction. While not specifically addressed at the hearing, I note that it is unlikely that he has continued to gamble since his term of imprisonment began some 18 months ago.
There remains an element of speculation about Mr Nguyen’s future access to gambling services. Mr Newton stressed their importance, and also emphasised the likely role of supervision arising from the parole process. This adds a further element of speculation to the issue of Mr Nguyen’s otherwise low risk of recidivism. Mr Nguyen appears to have applied for parole, but there was no evidence available to me as to prospects, or the nature and scope of any supervision for Mr Nguyen were parole even to be granted.
A further important caveat from Mr Newton’s assessment, particularly his written report, is the issue of Ms Vu’s offending. Her own evidence was consistent with that before the sentencing judge in her case and, beyond this, there is limited material on which to base a more substantial assessment. Mr Newton’s report carries the qualification that he has not himself assessed Ms Vu.
Overall, I am not certain that these ‘riders’ to Mr Newton’s assessment of risk are sufficient to undermine the impact of the evidence more broadly. I accept that there remain queries over the offending history of Mr Nguyen and his wife. Ms Vu was unable to provide a particularly clear explanation for her own offending and appeared somewhat defensive. Mr Nguyen himself has given somewhat contradictory explanations about his aspects of is history. However, the Applicant appears to have been quite negatively affected emotionally by the consequences of his poor decisions. He also appears to understand, and be committed to, the options for reform which have been elaborated by him, and his representatives.
Mr Nguyen has a record of, apparently, only informal employment in Australia but I accept he has made efforts to enhance his employability whilst in prison. I do not consider the evidence to demonstrate clearly one way or the other how the family unit might cope financially in the future. There have appear to have been setbacks and challenges in the past, said to arise from debts in Vietnam. There appears to be a reasonable chance that Mr Nguyen will be in a position to address his gambling, and Ms Vu is in part-time employment herself. It remains unclear what the status of her property is and, again, I am not able to make a definitive finding on whether confiscation or some other process is likely to impact the family.
I accept there is a low risk of Mr Nguyen reoffending and that specific pressures led to his offending. Nevertheless, I also take account of the fact that he entered into criminal conduct in the full knowledge that what he was doing was unlawful, and carried serious personal and community consequences. This factor speaks to placing some weight on the fact that there remains a risk of reoffending.
I consider the objective seriousness of the offending, in light of the principles established in the Direction, weighs against revocation. This is particularly given the principle that remaining in Australia is conferred in the expectation that non-citizens be law abiding, and should have their visas cancelled if they commit serious crimes. I also consider that given there is a risk of reoffending that this element weighs against revocation.
On balance, I am persuaded that this primary consideration weighs against revocation.
Best interests of minor children in Australia affected by the decision
The Direction requires that decision-makers ‘must make a determination about whether revocation is in the best interests of the child’ (paragraph 13.2(1)). This consideration applies to minor children (paragraph 13.2(2)), may apply to more than one child (paragraph 13.2(3)), and the following factors must be taken into account where relevant (paragraph 13.2(4)):
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 for 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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
In his written statements, Mr Nguyen states the following:
(a)he has always had a strong relationship with R, and has been involved in all aspects of her life including feeding, bathing, playing, drop-off and pick-up at childcare, and helping with homework;
(b)he considered himself her main caregiver and has a stronger relationship with R than his daughter has with her mother, and his arrest and incarceration have had a negative impact on R, causing behavioural issues;
(c)when working in Ballarat he would be out of the house between about 2.00 am and 1.00 pm. When living in Sydney he returned every three weeks to be with R and when in Sydney would speak to her with the help of his mother-in-law twice a day;
(d)he speaks with R almost every day and prior to lockdown saw his daughter every one to two months in prison;
(e)when talking to R via Zoom in prison she cries and asks him to come back to her; and
(f)he intends to study English on leaving prison as this will also help with his parenting of R who speaks English.
At the hearing Mr Nguyen stated that:
(a)during the time his wife was in prison, Mr Nguyen was the primary carer for R on the days that she was not staying in prison with her mother. He would take her to prison and sometimes his mother-in-law would take R to be with her mother; and
(b)he did not feel as close to his daughter when only able to speak via phone or Skype and preferred face-to-face contact.
In her written statements Ms Vu states as follows:
(a)Mr Nguyen is an incredible husband and father. Ms Vu kept working as a hairdresser after R was born and her husband did most of the feeding and looked after her well, going to work in the evenings after Ms Vu returned from her job;
(b)Ms Vu stopped working around the time R turned one, but parenting responsibilities were still shared with Mr Nguyen. Since he has been in prison, R misses her father and has behavioural problems including not listening to Ms Vu;
(c)R has problems at school and her father was better at helping with reading and teaching her things. Their relationship remains strong even while Mr Nguyen is in prison; and
(d)from a practical perspective, Ms Vu cannot raise R alone and needs someone to help care for her. Ms Vu’s responsibilities have increased due to the need to care for her mother who has multiple health conditions, and she helps her mother with dressing and showering, and her mother is forgetful.
In her evidence at the hearing Ms Vu stated that:
(a)after returning to work following the birth of R, her daughter spent one to two days a week in childcare and the rest of the time with her father. After her arrest Mr Nguyen and her mother both looked after R;
(b)when Mr Nguyen was living and working in Sydney, her mother’s health worsened and her father-in-law moved into a nursing home and her mother came to live with Ms Vu;
(c)while Ms Vu was in prison, R spent time with her and also at home with her father;
(d)prior to Mr Nguyen moving to Sydney, Ms Vu considered her daughter had a closer relationship with her father, and since he has been in prison she has become naughty and does not listen to Ms Vu;
(e)Ms Vu takes responsibility for her mother because her sister and mother do not get along, her sister lost her job and her whole family got COVID-19. She and her mother are very close to each other;
(f)R started attending school in grade prep last year. Due to the COVID-19 public health restrictions in Victoria, R spent time learning at home and at school, but her time of home schooling was difficult; and
(g)R is now in grade 1 and Ms Vu obtained a letter from her school explaining that her daughter’s emotional wellbeing appears to have been affected by her father’s absence (Exhibit A8). Her teacher has told her that R does not respond in class and misses her father.
In cross-examination Ms Vu also stated that:
(a)she did not think about the consequences for R when asking Mr Nguyen to move away in 2017;
(b)her relationship with Mr Nguyen improved one to two months before she went to prison. When asked why the sentencing judge was told no one would be able to look after R, Ms Vu agreed that her plea was translated to her and she stated she was under a lot of strain and she had ‘already told [her] solicitor’; and
(c)her sister was unable to help care for their mother as her sister was suffering depression after losing her job and getting COVID-19. Asked if her sister had recovered, Ms Vu stated that her sister had acquired another condition.
In the Applicant’s SFIC, it is submitted that Mr Nguyen has been both primary carer for a period and also shared sole parenting responsibilities for R. Their limited contact, particularly due to COVID-19, has had an impact on his daughter’s wellbeing and ‘it is plain that [R’s] emotional and developmental interests would be served by having day-to-day contact with the Applicant following his release on parole’. Due to the emotional and financial contribution he will be able to make to her life, this consideration weighs strongly in favour of revocation.
At the hearing it was submitted that Mr Nguyen was able to articulate the enjoyable aspects of parenting R and that phone calls were not a substitute for direct contact with her. Not only is it a logical proposition that it is in her best interests for the decision to be revoked, his absence has manifested behavioural changes and his daughter wishes to have Mr Nguyen back in her life.
In the Respondent’s SFIC, it is submitted that R has been cared for by her mother, including while Mr Nguyen is in prison. There is no reason to believe that this will not continue were he to return to Vietnam. Nonetheless, it is submitted that this consideration weighs somewhat in favour of revocation.
At the hearing the Respondent submitted that non-revocation is not in the best interests of Mr Nguyen’s daughter; the question being how much weight to place on this consideration. The evidence indicated that Mr Nguyen was willing to be apart from his daughter in Sydney and had other options that he could have pursued. His daughter’s schooling may have been disrupted in any event due to the impact of COVID-19. It was also submitted that his daughter, aged nearly six years, has experienced a significant period of separation from Mr Nguyen during his incarceration. Accordingly, the impact of prolonged physical separation would not be as great as it may be for an older child.
I accept the evidence that Mr Nguyen has played a particularly active role in R’s life in the past. I consider some of his evidence about this role should be tempered by the appreciation that R was very young before his prison sentence began. In addition to the current situation with Mr Nguyen in prison, he also spent some time apart from her when separated from his wife. I must also take into account the interruption to his life from his work schedule, prior to his offending, and due to his gambling activities.
There are some possible inconsistencies in the evidence about the nature and strength of the marital relationship. However this consideration addresses the relationship between the Applicant and his minor child. I accept that Mr Nguyen has, at the very least, played a normal and pro-active role in his daughter’s life. He has, it seems, continuously endeavoured to do so through a range of challenging circumstances.
I am prepared to accept that his daughter is understood to be particularly attached to him. There is some evidence his mother-in-law has contributed to R’s life, but I do not have any strong evidence that she fulfilled a parenting role. Indeed, Ms Vu’s evidence indicates that her mother may not be in a position to offer significant assistance at home. In short, it is highly likely that if permitted to remain, Mr Nguyen would play a parenting role for R.
Referring back to the other elements of the consideration set out above, I note that his past offending conduct has not had a direct impact on his daughter. While I have found the offending to be serious, it is not of a kind that, in this case, carries some inherent risk to the health or wellbeing of R. For example, it was not violent behaviour, nor of a sexual kind, and did not involve drug or alcohol addiction or abuse. I have accepted the evidence about a low risk of future offending, but I consider this possibility to carry little or no risk of impact on R. There is no neglect or physical or emotional trauma and, as noted, the evidence indicates rather that there is strong affection between Mr Nguyen and R.
Overall, I find that this consideration weighs in favour of revocation.
Expectations of the Australian community
The Direction states as follows in respect of this consideration (paragraph 13.3(1)):
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The SFICs of both parties refer to the decision of the Full Federal Court in FYBR v Minister for Home Affairs [2019] FCFCA 185 (FYBR) in relation to the expectations of the Australian community. I note the Respondent’s SFIC submits that the majority justices in this decision decided that the analogous consideration of a preceding version of the Direction contained a statement of the Government’s views as to the expectations of the Australian community. It is therefore not for the Tribunal to determine for itself the community’s expectations and, while the consideration is not to be applied inflexibly, the question that arises is the weight to attach to the consideration.

In the Applicant’s SFIC it is contended that, given the evolving legal and social attitudes to cannabis (as reflected in other submission made on Mr Nguyen’s behalf), it is open to the Tribunal to find that the Australian community would consider cancellation a disproportionate response. It is also contended that given the other considerations arising, including Mr Nguyen’s young daughter, that only minimal weight should be afforded this consideration.
In its SFIC, the Respondent contends that Mr Nguyen has failed to meet the expectation of the Australian community that he abide by the law, having regard to the principles set out in the Direction and the seriousness of his offending. Given the serious consequences of commercial cannabis cultivation, this consideration should be given significant weight, and the consideration overall weighs heavily against revocation. At the hearing it was further contended that Mr Nguyen had failed community expectations by not complying with his student visa conditions and his willingness to disregard Australian law was not consistent with community standards.
I consider that the summary reference above to FYBR is a correct statement of the law describing the manner in which this consideration should be understood. I have already found that Mr Nguyen’s conduct should be considered to be serious offending, and I am not persuaded that the Applicant’s submissions with respect to contemporary approaches to cannabis cultivation significantly affect the weight to be placed on this ‘deemed’ expectation.
As noted above, Mr Nguyen became involved in a serious form of offending with full knowledge of the consequences. He knew the legal and personal cost. I consider that it is appropriate to find that this consideration weighs against revocation.
Other considerations
I set out above the specific other considerations which are identified in the Direction. In the Applicant’s SFIC, submissions are made with respect to the strength, nature and duration of ties to Australia, and the extent of impediments if removed. Particular emphasis was put at the hearing on this latter other consideration. In turn, the Respondent’s SFIC responds only to these two considerations.
I am satisfied, having considered the material before me, and following the evidence provided at the hearing, that the other considerations in paragraphs 14(1)(a), (c) and (d) are not clearly engaged in Mr Nguyen’s particular circumstances and, accordingly these other considerations weigh neutrally.
The Direction provides that, in considering the strength, nature and duration of ties to Australia, and reflecting the principles (set out in paragraph 6.3), decision-makers must have regard to (paragraph 14.2(1)):
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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Direction provides as follows with respect to the extent of impediments if removed (paragraph 14.5(1)):
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.
I set out here the further written and oral evidence pertaining to these other considerations.
In his statements Mr Nguyen states as follows:
(a)his parents and older sister live in Vietnam;
(b)following his arrival in Australia in 2013, he abandoned his English studies, moved to Melbourne and rented a room with Ms Vu. Their relationship then developed and they married in October 2014. Their daughter was born in April 2015;
(c)he had in the past helped care for his mother-in-law by taking her to medical appointments and to obtain medicine. Ms Vu ‘doesn’t have any support in the community’; her father passed away in March 2018 and her sister does not assist Ms Vu or her mother very often;
(d)Ms Vu informed Mr Nguyen about the revocation decision and she was very upset, was worried about their future together and whether they could continue as a family in Australia;
(e)his daughter will be badly affected if he returns to Vietnam; she is an Australian citizen and if she returned to live with Mr Nguyen in Vietnam she would not have the same access to education, healthcare or employment opportunities, and she has never previously travelled to Vietnam;
(f)Ms Vu would have great difficulties if she returned to live with Mr Nguyen in Vietnam, having lived in Australia for 15 years; and
(g)his mother-in-law has a range of health conditions and dementia and therefore Ms Vu must help his mother-in-law full time and cannot leave her.
In her statements Ms Vu states as follows:
(a)she became and Australian citizen in July 2010;
(b)her daughter enjoys her weekly calls to her father in prison;
(c)Mr Nguyen used to assist her mother with medical appointments and they have a good relationship;
(d)she needs Mr Nguyen’s assistance to raise their daughter and it is important that he maintain that relationship in person;
(e)her mother’s medical conditions are getting worse and as her mobility gets worse, the caring responsibilities increase. It is harder to manage now with her daughter’s behavioural changes; and
(f)Ms Vu is settled in Australia and does not want to be forced to go to Vietnam and her daughter’s future would not be the same if she moved.
In evidence at the hearing Mr Nguyen stated that:
(a)he has no family members in Australia other than his wife, daughter and mother-in-law;
(b)if he returned to Vietnam he would live with his parents, would look after them and find employment. Mr Nguyen was unsure given his absence of six to seven years whether he would be able to return to his previous employment;
(c)he did not think it would be suitable for his daughter to live in Vietnam but accepted that she would be able to visit him there;
(d)he accepted that he understands Vietnamese language and culture, but thought it would be hard to adapt on return because he would be sad; and
(e)he accepted he would have access to health services but considered nothing could heal the pain of being away from his daughter.
In her evidence Ms Vu stated that:
(a)her mother requires help with showering, with food and visits to doctors. There is ‘more going on than just age’ and she considers her mother to be very sad and gets sick when thinking of the things that have happened;
(b)if Mr Nguyen were to remain in Australia, Ms Vu would have more time to work as she presently has little time to herself, helping R and her mother ‘morning to evening’;
(c)she currently receives parenting payment and a couple have moved into her home to share expenses, which helps Ms Vu with mortgage payments. It would help financially if Mr Nguyen were permitted to stay, and they would have more money for her daughter’s education and for food; and
(d)Ms Vu stated she would not want to be apart from her husband and was unable to join him in Vietnam. This was because the education system was not as good as Australia, and because of her mother’s health conditions.
In cross-examination, Ms Vu stated that she did not have the financial capacity to visit Vietnam. She accepted that R could maintain contact with Mr Nguyen via Skype calls but that this was not as good from an emotional point of view.
The evidence of Ms Pham in her written statement (Exhibit A9) and evidence at hearing was consistent with the evidence of other witnesses with respect to the assistance provided to her by Mr Nguyen and by Ms Vu, and the relationship between the Applicant and his daughter. Ms Pham stated in evidence she was unable to recall the nature and circumstances of the separation between her daughter and the Applicant, although she recalled that they had arguments. Ms Pham acknowledged the contents of the medical summary (Exhibit A10). This summary records that Ms Pham has the following conditions: depression; hypertension; diabetes type II; and dry eyes. She has recent prescriptions for these conditions. There was no direct evidence introduced as to Ms Pham’s residency status but in her first statement, Ms Vu states that she arrived in Australia as a secondary holder of her mother’s partner visa.
In the Applicant’s SFIC it is submitted the Mr Nguyen has established a close family unit in Australia, consisting of his wife, daughter and mother-in-law. Mr Nguyen has worked ‘tirelessly’ in the meat processing industry, making a contribution to the Australian community. Having his immediate family in Australia means that the consideration of the strength, nature and duration of ties weighs heavily in favour of revocation.
It is further contended that the overwhelming impediment he would face if returned to Vietnam would be separation from this family unit. He would be unable to return to a parenting role and the impact would be devastating for Mr Nguyen and the other family members. There is no indication that this family unit is prepared to return to Vietnam. It was further contended at the hearing that there would be financial implications for his immediate family were he to return to Vietnam. It is contended the consideration weighs heavily in favour of revocation.
In the Respondent’s SFIC it is contended that:
(a)Mr Nguyen started offending five years after his arrival in Australia and less than a year after obtaining permanent residence, and he breached the conditions of his student visa three months after arrival;
(b)while he has made a contribution to the community, this is not a case where the community would have a higher degree of tolerance for his offending, which outweighs any tolerance arising from his time in Australia;
(c)even should the strength, nature and duration of ties weigh in favour of revocation, it would not outweigh the primary considerations;
(d)Mr Nguyen does not face any substantial language or cultural barriers in Vietnam and has the qualifications and work experience to establish himself to the standard described in the Direction;
(e)Accordingly, the extent of impediments consideration does not weigh in favour of revocation.
It was also contended at the hearing on the Respondent’s behalf that:
(a)Ms Vu’s evidence about the nature of her separation from Mr Nguyen was not consistent with the remarks of the sentencing judge and that this, together with Mr Nguyen’s own evidence about his time in Sydney, meant that there was a speculative dimension to the state of their relationship;
(b)they have not been a couple for three years, and the last time they were living as a couple was six months prior to the start of Mr Nguyen’s prison term;
(c)Mr Nguyen’s ties to the community do not outweigh the primary considerations;
(d)Mr Nguyen faces no particular impediments to a return to Vietnam, particularly given that all of his family are there; and
(e)the potential limited access to medical services arising from Mr Newton’s evidence is mitigated by the fact that it has been accepted Mr Nguyen has good prospects of rehabilitation even in Vietnam.
In response at the hearing it was submitted on behalf of the Applicant that the particular proposition raised by the Respondent with respect to the nature of the marital relationship had not been put in evidence to Ms Vu or Mr Nguyen. The evidence is, rather, that there is a committed relationship now despite possible differences of interpretation as to details regarding the separation.
Conclusion
With reference to the first element of the consideration strength, nature and duration of ties, I consider that some weight should be given to the fact that Mr Nguyen arrived in Australia as an adult and his offending conduct took place within five years. It is, as noted previously, a single instance of offending. Equally, some weight should be given also to the fact that Mr Nguyen has, otherwise, according to the evidence, been engaged in a range of manual occupations throughout those years. It is contended that his involvement in work is to be understood as a contribution to the community, and I cannot dispute that working can be understood positively in this context.
As regards the second element of this consideration I accept that Mr Nguyen and his immediate family function as a small and, possibly, somewhat isolated unit, and that his wife and daughter are Australian citizens. No direct evidence was introduced as to the exact nature of Ms Pham’s residence in Australia. I might infer from the circumstances described in Ms Vu’s first statement and the length of her time in Australia with her mother, that Ms Pham may have a right to permanently reside here.
The evidence indicates that while Mr Nguyen has work contacts in Melbourne and Sydney, that the family unit comprises almost the entirety of his family and social links in Australia. It is contended that there is some uncertainty about the genuine nature of the marital relationship. I accept there is some ambiguity in the evidence provided but, as noted above, consider the direct evidence of the parties is sufficient to persuade me of the genuine intent to remain as a family. Even were this not the case, I would, in any event, be required to acknowledge here the relationship between Mr Nguyen and his Australian citizen daughter.
On balance, I consider the links between Mr Nguyen and this group to be unique and enduring. This consideration concerns the effect of non-revocation on this group. The evidence suggests the emotional impact of Mr Nguyen’s return to Vietnam would be significant. There would also be practical and financial impacts. I accept Ms Vu’s evidence about the advantages of having assistance from My Nguyen, however I do not consider that she is presently facing any obvious or unique hardship. The independent medical evidence concerning her mother was not definitive. However, I accept that the oral evidence suggests the situation with her mother is somewhat more difficult than it might appear on paper.
Mr Nguyen has maintained contact with his daughter and the family unit throughout his time in prison, albeit in-person contact has been necessarily restricted. There has been throughout the evidence a strong emphasis on the close relationship between the Applicant and his daughter. This has of course been interrupted due to his offending. There has also been evidence as to the disturbance she has experienced as a result. This may not necessarily be a dimension particular to them, given that they have their circumstances in common with others confined to prison. However, this fact does not reduce its importance in the context of the evidence overall in this matter.
There are effective means of Mr Nguyen maintaining contact with his family both remotely and through visits. I do not consider the evidence about the difficulty of maintaining contact to be compelling, however I accept that the clearly expressed view of the witnesses is that it is not preferable. I do not consider that travel to Vietnam periodically would be unfeasible. The evidence was consistent also that none of the witnesses considered full family relocation to Vietnam a feasible option. One of the more critical reasons raised was the health of Ms Pham. As noted, the medical evidence is not concrete in this respect, but I am satisfied that, given the particular nature of his family relationships, some weight must be given to the barriers faced around reuniting in Vietnam permanently.
Overall, I consider that the consideration strength, nature and duration of ties weighs in favour of revocation.
With respect to the extent of impediments if removed, the evidence is clearly to the effect that Mr Nguyen faces no linguistic or cultural barriers. He remains of an age and physical condition that these are not barriers to his successful return. He has close family in Vietnam and is qualified to work and, on the evidence, has no other personal or medical needs that cannot be met in Vietnam.
Keeping in mind the relatively low standard established by this consideration with respect to living standards on return, this consideration weighs against revocation.
CONCLUSION
Of the primary considerations I have found that protection of the Australian community weighs against revocation, the best interests of minor children in Australia weighs for revocation, and the expectations of the Australian community weighs against revocation.
Of the other considerations I have found that the following considerations weigh neutrally: international non-refoulement obligations; impact on Australian business interests; and, impact on victims. I have found that strength nature and duration of ties weighs in favour of revocation, and that extent of impediments if removed weighs against revocation.
The Direction states that the principles it establishes are critical in determining whether the risk of future harm from a non-citizen is unacceptable (paragraph 6.2(1)). Among the principles is reference to taking into account the consequences of a decision for minor children and other immediate family members in Australia (paragraph 6.3(7)). In applying the considerations, evidence from independent and authoritative sources should be given appropriate weight (paragraph 8(2)). In this case, Mr Nguyen has been assessed by both the sentencing judge and a forensic psychologist as at low risk of re-offending.
The independent offending history of Ms Vu has been considered in this matter. This is not merely incidental to the Mr Nguyen’s circumstances and to the considerations, but equally her similar offending history should not play an inappropriate part of determining the correct and preferable decision for the Applicant.
As noted, the Direction provides guidance as to the manner in which the findings with respect to individual considerations may be understood as a whole: primary considerations should generally be given greater weight than other considerations, and one or more primary considerations may outweigh other primary considerations.
Given the discretion afforded by the Direction and in light of the particular considerations and findings with respect to the best interests of R in this matter, set out above, I consider it appropriate to find that impact on R of non-revocation outweighs the protection of the Australian community, particularly given the low risk of Mr Nguyen re-offending, as well as the expectations of the Australian community.
I also find that, when taken together with the other consideration strength, nature and duration of ties, which weighs in favour of revocation, that these considerations outweigh those considerations that I have found weigh against revocation. In short, the impact of Mr Nguyen’s return to Vietnam given the strength of his ties to his small family, including in particular R, and the impact that his return would have, outweigh the other considerations.
DECISION
For the reasons given above, the Tribunal decides that the decision of the Respondent dated 27 November 2020 not to revoke the mandatory cancellation of the Applicant’s Class BS Subclass 801 (Partner) visa under s 501CA(4) of the Migration Act 1958 (the Act) is set aside and substituted with a decision that there is another reason why the mandatory cancellation pursuant to s 501(3A) of the Act should be revoked.

111. I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

...[sgd]...........................................................
Associate
Dated: 18 February 2021

Dates of hearing: 4, 8 and 9 February 2021

Advocate for the Applicant: Tanya Skvortsova

Solicitors for the Applicant: Clothier Anderson Immigration Lawyers

Advocate for the Respondent: Sarah Thompson

Solicitors for the Respondent: HWL Ebsworth Lawyers

[2021] AATA 254

18 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Dates of hearing:	4, 8 and 9 February 2021
Advocate for the Applicant:	Tanya Skvortsova
Solicitors for the Applicant:	Clothier Anderson Immigration Lawyers
Advocate for the Respondent:	Sarah Thompson
Solicitors for the Respondent:	HWL Ebsworth Lawyers