Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 4
•6 January 2021
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4 (6 January 2021)
Division:GENERAL DIVISION
File Number: 2020/6505
Re:Kien Trung Nguyen
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:6 January 2021
Place:Melbourne
The Tribunal affirms the decision under review.
[sgd]........................................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of Vietnam – Partner (Residence) (Class BS) Subclass 801 Partner Visa – failure to pass good character test – cultivate commercial quantity of cannabis – theft of electricity – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
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 Home Affairs [2020] FCAFC 109
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BCF16 v Minister for Immigration and Border Protection [2019] FCA 19
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
DPP v Nguyen & Anor [2019] VCC 1676
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs (2019) 272 FCR 454
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Maxwell v R (1996) 184 CLR 501
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Murphy v Minister for Home Affairs [2018] FCA 1924
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 304 ALR 535
PQSM v Minister for Home Affairs [2019] FCA 1540
Tewao v Minister for Immigration and Citizenship [2012] FCAFC 39
TVTM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4168
Viane v Minister for Immigration and Border Protection (2018) 162 ALD 13
WAD 230/2014 v Minister for Immigration and Border Protection (2015) 148 ALD 117SECONDARY MATERIALS
Australian Criminal Intelligence Commission, Illicit Drug Data Report 2018-19 (September 2020)
Direction No. 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b)
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 s501C
DFAT Country Information Brief – Vietnam – 13 December 2019 (Department of Foreign Affairs and Trade)REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
6 January 2021
INTRODUCTION
The Applicant, Mr Kien Trung Nguyen, seeks review of a decision not to revoke the mandatory cancellation of his Class BS Subclass 801 Partner Visa (the visa).
The hearing was held in Melbourne on 21 and 22 December 2020. Parties appeared by audio visual link consistent with the Tribunal’s COVID-19 Special Measures Practice Direction. The Applicant was represented by Mr Harvey and assisted by an interpreter in the Vietnamese language. The Minister was represented by Mr Orchard of Sparke Helmore.
For the following reasons the Tribunal affirms the decision under review.
BACKGROUND
The Applicant is a 42-year old citizen of Vietnam.[1] Prior to arriving in Australia he studied jewellery-making, worked as a computer screen technician,[2] and was employed in the advertising and IT industry.[3] All of the Applicant’s family continue to reside in Vietnam.
[1] Exhibit R1, 52.
[2] Exhibit A2, 5 [11].
[3] Exhibit R2, 27 [5]; Exhibit R1, 29 [28].
The Applicant lived in Vietnam with his Australian citizen defacto partner for some years before relocating to Australia on 6 May 2010.[4] He was then aged 32 and the couple married the day after arriving in Australia.[5] The Applicant’s wife sponsored his temporary partner visa in 2011 and then a permanent partner visa, which was granted on 16 October 2014.[6] The Applicant and his wife separated in late 2015 and divorced on 3 March 2017.[7]
[4] Exhibit R1, 92.
[5] Exhibit A1, 1.
[6] Exhibit R1, 17 [36]; 92; Exhibit R2, 27 [6].
[7] Exhibit A1, 1.
The Applicant has returned to Vietnam on four occasions as follows:[8]
[8] Exhibit R1, 91-92; 128-129.
DEPARTED RETURNED ABSENCE 21 December 2014 5 January 2015 14 days 23 December 2016 8 January 2017 15 days 10 June 2017 14 June 2017 3 days 20 December 2017 6 January 2018 16 days
Since arriving in Australia, the Applicant worked for a single employer for about eight years. After being placed on WorkCover payments in July 2018 due to a shoulder injury, he claimed to have gambled heavily.[9] He said this caused him to chase his losses and borrow money,[10] purportedly at ‘very high’ interest rates from ‘loan sharks.’[11] Unable to repay the loans, he claimed these creditors suggested he become involved in a cannabis growing enterprise, which he did in October 2018.[12]
[9] Exhibit A1, 1.
[10] Ibid.
[11] Exhibit R1, 68.
[12] Exhibit A1, 2.
In January 2019 search warrants were executed at three properties in the Shepparton area and the Applicant was arrested at one of these.[13] Hydroponic cannabis growing operations were discovered at all three houses, with the cannabis seized having a combined weight of 163.04 kilograms. This was over six times the 25 kilograms of cannabis required to constitute a commercial quantity under Victorian law.[14]
[13] Exhibit R1, 26.
[14] Schedule 11, Part 2, Drugs, Poisons and Controlled Substances Act 1981 (Vic).
On 9 October 2019 the Applicant was convicted of cultivating a commercial quantity of cannabis, and received a sentence of 32 months imprisonment with a non-parole period of 22 months.[15] He was also convicted of electricity theft related to the bypassing of electricity meters, for which he received an aggregate term of 12 months imprisonment and was ordered to pay $27,598.51 in compensation. Ten months of this sentence was concurrent.[16] The Applicant’s total effective sentence amounted to 34 months imprisonment,[17] and he has been on remand or serving that sentence since being arrested on 18 January 2019. The Applicant’s co-offender, who was also arrested at one of the grow houses, received a sentence of 16 months imprisonment with a ten-month non-parole period. The Court considered the Applicant’s role and responsibilities, and those of his co-offender, were ‘clearly very different.’[18]
[15] Exhibit R1, 21-22; 33.
[16] Exhibit R2, 42.
[17] Ibid.
[18] Exhibit R1, 27 [20].
On 9 January 2020 the Applicant’s visa was mandatorily cancelled by the Minister on character grounds under s 501(3A) of the Migration Act 1958 (Cth) (the Act) (cancellation decision).[19] At that time he was serving a full-time sentence of imprisonment.[20]
[19] Ibid, 38-44.
[20] Ibid, 35; 43-44.
The Applicant made representations to have the cancellation decision revoked.[21] On 28 April 2020 he was provided with further information relating to his offending,[22] and his response was received by the Department on 20 May 2020.[23]
[21] Ibid, 45-65; 138.
[22] Ibid, 85-86.
[23] Ibid, 87-89.
On 15 October 2020 a delegate of the Minister decided not to revoke the visa cancellation (non-revocation decision),[24] and advised the Applicant of this by letter dated 16 October 2020.[25] On 21 October 2020 the Applicant asked the Tribunal to review the non-revocation decision.[26]
[24] Ibid, 7-8.
[25] Ibid, 4.
[26] Ibid, 1-6.
Consistent with s 500(6L) of the Act, the Tribunal must discharge its review function within 84 days of the Applicant being notified of the non-revocation decision in accordance with s 501G(1). The 84th day in this matter is Friday, 8 January 2020, which is seven working days after the hearing and encompasses the Christmas and New Year holiday period.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review non-revocation decisions.
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, with s 501(6)(a) stating:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or …
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record, including if the person has been 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 provides a discretion that the Minister may 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.
Direction No. 79
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. The Minister has done so in the form of 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 (the Direction). Section 499(2A) mandates the Tribunal must comply with the Direction.[27]
[27] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9]; PQSM v Minister for Home Affairs [2019] FCA 1540, [22].
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 6.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, cl 6.2 of the Direction provides that:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to…revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered…in making a revocation decision are identified in Part C of this Direction.
The principles referred to in the Preamble of the Direction are reproduced below and constitute a framework within which relevant considerations are applied:
6.3 Principles
(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.
Clause 7(1)(b) of the Direction provides that, in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’. The following primary considerations at cl 13(2) of the Direction are to be applied:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Clause 14(1) of the Direction states that other considerations must be taken into account where relevant, which include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Clause 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57] and [78]:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES THE APPLICANT PASS THE CHARACTER TEST?
By virtue of his convictions on 9 October 2019 and sentences of imprisonment exceeding 12 months, the Applicant has a substantial criminal record. Because of the combined effect of ss 501(6)(a) and 501(7)(c) of the Act, the Tribunal finds he does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the cancellation decision should be revoked. In Viane v Minister for Immigration and Border Protection (2018) 162 ALD 13, the Full Court of the Federal Court of Australia reflected on this task as follows (per Colvin J at [64]):
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
EVIDENCE
The following documents were tendered into evidence:
(a)Documents titled ‘Section 501 G Documents’ numbering 144 pages;[28]
[28] Exhibit R1.
(b)Documents titled ‘Respondent’s Tender Bundle’ numbering 53 pages;[29]
[29] Exhibit R2.
(c)Three-page statement of the Applicant dated 15 December 2020 with translation;[30]
[30] Exhibit A1.
(d)Report of clinical-forensic psychologist Dr Debra Bennett dated 17 November 2020.[31] Dr Bennett also gave oral evidence at the hearing;
(e)Two-page statement of Mr Thien Quoc Vo, a former work colleague of the Applicant, dated 30 November 2020.[32] Mr Vo gave oral evidence at the hearing;
(f)Two-page undated statement of Ms Thuy Bui of the Indo-Chinese Prisoners Support Program.[33] Ms Bui’s statement was lodged with the Tribunal on 17 December 2020, and conflicted with the so-called ‘Two-Day Rule’ mandated by ss 500(6H)-(6J) of the Act. The Tribunal exercised its adjournment power to enable Ms Bui’s statement to be taken into evidence and for her to appear as a witness on 22 December 2020;
(g)Two-page statement of Mr Phong Nguyen, former President of the Victorian Chapter of the Australian Vietnamese Community, dated 30 November 2020.[34] Mr Nguyen was not called as a witness;
(h)Two-page statement of Mr Toan Nguyen, a former work colleague of the Applicant, dated 30 November 2020.[35] Mr Nguyen was not called as a witness;
(i)Two-page undated statement of Mr Son Trong Tran, a former work supervisor of the Applicant.[36] Mr Tran was not called as a witness;
(j)Two-page statement of Mr Thich Phuoc Tan, OAM, Abbott of a United Vietnamese Buddhist Temple, dated 29 November 2020.[37] Mr Tan was not called as a witness;
(k)Letter of Ms Amanda Bott from the Victorian Department of Justice dated 16 December 2020.[38] Ms Bott was not called as a witness;
(l)Department of Foreign Affairs and Trade Country Information Report Vietnam dated 13 December 2019, which was provided to the parties by the Tribunal prior to the hearing and tendered into evidence as a Tribunal document;[39] and
(m)Statement of the Applicant’s superannuation and Australian bank account balances, which were taken into evidence as Tribunal documents.[40]
[31] Exhibit A2.
[32] Exhibit A3.
[33] Exhibit A4.
[34] Exhibit A5.
[35] Exhibit A6.
[36] Exhibit A7.
[37] Exhibit A8.
[38] Exhibit A9.
[39] Exhibit T1.
[40] Exhibit T2.
Applicant’s evidence
Prior to commencing his evidence, the Tribunal confirmed the Applicant and interpreter clearly understood each other. The Applicant adopted his statement as true and correct.[41] Key aspects of the Applicant’s oral evidence are summarised as follows:
[41] Exhibit A1.
(a)The Applicant left his home village in Vietnam when quite young to work in the jewellery trade and other roles. He predominantly worked in Ho Chi Minh City, approximately 2000 kilometres from his family home;
(b)The Applicant’s relatives continue to live in Vietnam, and he has consistently maintained contact with them. He has returned to Vietnam on four occasions for holidays, to attend a wedding, and to buy traditional medicine for a shoulder injury;
(c)The Applicant said that after arriving in Australia his marriage was initially ‘smooth and stable,’[42] but disagreements arose because of money issues and the Applicant’s desire to have children. He claimed that his wife had two children from a previous marriage and did not want any more. She left him in late 2015 and although he tried to reconcile with her, they divorced in March 2017;
[42] Exhibit R1, 68.
(d)Since arriving in Australia, the Applicant has worked exclusively at a sheet metal company.[43] He provided references from his employer and workmates, a statement dated 7 August 2019 confirming he has an accumulated superannuation balance of $55,308.30, and an Australian bank statement as at 18 August 2020 reflecting an account balance of $1.63.[44] The Applicant said he also has a Vietnamese bank account, but is unable to recall the balance and claimed not to have checked this account since being imprisoned in 2018 because of no internet access;
[43] Ibid, 62.
[44] Exhibit T2.
(e)The Applicant contextualised his gambling problems as emerging after his divorce in March 2017. Although he and his ex-wife had previously gambled at the casino, he said they only spent approximately $100 or $200 for ‘fun and entertainment.’ The Applicant explained that after his divorce the ‘more [he] stayed at home, the more loneliness [he] suffered.’ His gambling escalated and he also worked more overtime. The latter caused a shoulder injury and he was subsequently placed on WorkCover in July 2018,[45] which precluded work of any kind. He said his gambling resulted in a ‘vicious cycle’ as he chased losses;
[45] Exhibit R2, 12-14.
(f)The Applicant said he quickly exhausted his savings by gambling between $400 and $500 per session. The $823 he received in weekly WorkCover payments was insufficient to service his debts and living expenses. He claimed to have borrowed from ‘loan sharks’ who became increasingly insistent about repayment. Upon realising he could not pay, the Applicant claimed:
…they threatened me and suggested work for me to do. They told me they would give me a simple job; I would be responsible for watering some plants. They said if I did not pay back the money they would either kill me or make me permanently disabled. They took me to a property. I couldn’t leave the property because I still owed them money. I recognise it was an illegal activity. They asked me to water the cannabis.
(g)The Applicant said he received a cash advance of $15,000 upon joining the cannabis enterprise, which he used to reduce his debt to the loan sharks. He also received up to $800 in weekly cash payments. When asked about his WorkCover restrictions, the Applicant explained: ‘At the time my shoulder was improving and watering the cannabis plants was not a heavy job.’ He said the additional cash payments were undeclared income;
(h)The Applicant agreed that in answering his criminal charges he did not claim threats or coercion caused his involvement in the cannabis enterprise. He agreed those claims were first made in 2019 in the context of the visa cancellation process;[46]
[46] Exhibit R1, 88.
(i)When challenged that he was more involved in the cannabis enterprise than just watering plants, the Applicant disagreed, stating he did not have a supervisory role:[47]
[47] Exhibit A1, 1.
just working for a few months cannot qualify me as a supervisor. Someone working as a supervisor would need more skills and experience.
The Applicant agreed his co-offender was found to be a crop sitter and received a sentence of imprisonment of 16 months; half that received by the Applicant. He also accepted the different sentences reflected their dissimilar roles and levels of responsibility. After several questions, the Applicant was asked to respond directly to whether he accepted the Court’s conclusion that he was a form of supervisor, to which he responded: ‘I accept;’
(j)When asked if he knew that his participation in the cannabis enterprise was illegal, the Applicant responded: ‘At first I didn’t know,’ claiming it was only when taken inside one of the crop houses that he first became aware. When asked who he worked for, the Applicant responded:
I don’t know who they are or where they live or where they’re working. I only knew him as David. I met David at the TAB around September 2018.
(k)When put to the Applicant that he told the Court when first charged that he did not know the crops were cannabis,[48] he responded:
[48] Exhibit R1, 37; 89.
It was a long time ago. I was terrified. I don’t remember what I said. If I did say that, then accept my sincere apology…I didn’t lie to the Court…I cannot recall, I cannot remember what I said.
(l)When asked about his understanding of the ‘electrical set up’ at the crop houses, the Applicant said this was already established. He claimed: ‘I know nothing about electricity or electricity systems. My lawyer told me cultivation was not possible without electricity.’ When pressed that he pleaded guilty to electricity theft at the three properties, the Applicant agreed he had;
(m)When put to the Applicant that he participated in the cannabis growing enterprise for personal gain, he responded: ‘No.’ When asked why he committed these crimes despite stable employment and accommodation, the Applicant said he ‘lacked knowledge about gambling…[and]…about the legal system or law in Australia.’ He claimed to have only realised the serious social and legal consequences of cannabis after being arrested. Since imprisonment, he claimed to have educated himself about cannabis and ‘learned the Australian law system.’ When asked to elaborate on the serious consequences he referred to, the Applicant said cannabis was addictive, destructive, destroyed memory, and was linked to other crimes and agreed that it may contribute to the use of harder drugs. When challenged that the Court had concluded he knew what he was doing was wrong, the Applicant stated he acted out of ‘stupidity’ but would not do so again;
(n)The Applicant said he had undertaken rehabilitative courses while imprisoned relating to anger management and gambling. He had also tried to improve his English and undertook some vocational training to assist with future employment;
(o)When asked about the compensation order against him of $27,598.51 for theft of electricity, the Applicant said he was unaware of this and had not previously made any repayments. When referred to the relevant Court order,[49] the Applicant accepted it was a debt owed and said he has ‘a serious intention to pay it back’ if released;
[49] Exhibit R2, 22.
(p)When asked about the claim in his statement that the loan sharks ‘no longer chased [him] for the money as they knew [he] had paid a high price’ through imprisonment,[50] the Applicant confirmed: ‘They no longer chase me for that.’
[50] Exhibit A1, 2.
(q)The Applicant was subjected to extensive questioning about his residual debts in Australia and in Vietnam. This line of questioning can be summarised as follows:
(i)The Applicant said he borrowed approximately AUD$7,000 to $8,000 from each of three loan sharks from around June 2018, but there was ‘no paperwork.’ The Applicant said he only knew them by their first names; ‘Hung, Hien and Minh.’ He claimed they belonged to the same gang but had no other details. He previously had their mobile numbers but could no longer recall them. He said each loan shark approached him in turn about participating in the cannabis enterprise. When asked about his previous reference to ‘David’ having approached him at the TAB, the Applicant said David also approached him. When asked to clarify the amounts he now claimed to owe the loan sharks, the Applicant said it was ‘maybe $5,000, $7,000, and $9,000.’ He claimed that at one stage he asked the loan sharks to stop accumulating interest and they agreed. He said they reached this accommodation when he repaid about half the debt from the AUD$15,000 cash advance he received on joining the cannabis enterprise;
(ii)The Applicant said he had no contact with the Australian loan sharks since being arrested in 2018. He confirmed that neither he nor his family had received any threats. When asked why he still held fears about the loan sharks given his earlier claim they were no longer pursuing repayment, the Applicant insisted the debt was still owed. He said the loan sharks conducted a ‘background check’ and are aware of his ‘locations, workplace, and who [his] family is in Vietnam.’ He claimed the loan sharks could hire someone in Vietnam to harm him and the cost of doing so ‘is cheap.’ He did not elaborate on what his knowledge about the cost and availability of such services in Vietnam was based on. When asked why the loan sharks were not more of a threat in Australia, the Applicant said he could earn more money here to repay them. When pressed that in the absence of any contact from the loan sharks he was speculating and did not know their intentions, the Applicant agreed, stating: ‘currently I don’t.’ When asked why Vietnamese authorities could not protect him if repatriated, he responded: ‘Vietnamese authorities are sometimes easy on underworld criminals;’
(iii)The Applicant was asked about his claim to Dr Bennett that his family in Vietnam secured a $50,000 loan at his request.[51] He said this was not correct and his family only borrowed $10,000, with the rest borrowed from others in Vietnam. The Applicant explained that his father borrowed the equivalent of AUD$6,000 from a Vietnamese bank using his home as collateral, while an aunt borrowed the equivalent of AUD$4,000 using her home as collateral. He stated his loan agreements with family members was verbal and agreed there was no evidence before the Tribunal from his father, aunt, or the bank to corroborate his claims. Contrary to the claim in Dr Bennett’s report that he borrowed from his family with ‘shame’ to repay gambling debts, the Applicant’s oral evidence was that he told his family he needed the money ‘for business.’ He said they did not discover his gambling problems or the debts to loan sharks until after his imprisonment in 2018;
(iv)The Applicant claimed he was less concerned with the $10,000 secured loan taken out ‘officially’ by his father and aunt, and more concerned with the money his ‘family had borrowed…unofficially.’ Later in his evidence, however, the Applicant claimed it was he who had borrowed money ‘unofficially’ from others and not his family members. He claimed to have borrowed the equivalent of AUD$25,000 from a close friend called Quyen, AUD$6,000 from a friend called Tuan, and about AUD$2,000 from ‘just a few others.’ When asked how these loans were made, the Applicant said he telephoned his friends who deposited the funds into his ‘Vietinbank’ account. He could not recall the current balance of this account and claimed he had not checked it since being imprisoned. The Applicant agreed there was no evidence apart from his own claims about debts owed in Vietnam;
(v)The Applicant said he was ‘also scared’ of the two friends who loaned him money in Vietnam. When asked why he had not expressed these fears prior to the current hearing, the Applicant responded: ‘I do not remember.’ When asked to elaborate, the Applicant explained it was possible his two friends ‘might approach underworld criminals’ to recover the debts; and
(vi)The Applicant agreed that the total of his claimed current debts in Australia and Vietnam amounted to approximately $81,000.
(r)When asked if he had applied for a Protection Visa, the Applicant said he had not and was unaware he could do so. When asked why the Tribunal should place weight on his general and speculative submissions about outstanding debts and a fear of creditors, the Applicant insisted his claims were true. He asked for another chance to be a ‘law-abiding, compliant, tax-paying citizen.’ The Applicant said if allowed to remain in Australia, he would return to his previous employment and work more overtime and on weekends to combat his loneliness. He referred to a ‘coffee-making’ course completed in prison as a potential source of additional employment and said he had also improved his English. A former workmate, from whom he previously rented a room, had agreed to provide him with accommodation if released. The Applicant said he would also undertake volunteer work at a Buddhist Temple and a Vietnamese Cultural Centre. He claimed to have met ‘many other Vietnamese people in jail because of drugs and gambling,’ and wanted to give others a ‘serious warning’ that those who commit crimes in Australia will be punished;
(s)The Applicant said he had learned about money management while imprisoned and would work hard to pay back any debts and then save. He hoped one day to buy a property. He agreed his shoulder problem had resolved and there was no impediment to him returning to work and implementing his financial plan; and
(t)The Applicant said if repatriated to Vietnam, the impact on people he knew in Australia was ‘not applicable.’[52] He feared that his removal would bring shame on himself and his family. He claimed to have been deleted from the Household Registration Book in Vietnam and did not know how to reapply. The Applicant said he left his hometown in Vietnam 20 years ago to work in Ho Chi Minh City and would now be ‘unable to attend to farming work’ and may ‘face social discrimination’ if people became aware of his offending and returnee status. When pressed that he had independently lived and worked in other parts of Vietnam away from his family since a young age and could do so again, the Applicant insisted he would only return to his hometown because he had no family in Ho Chi Minh City, no accommodation, and did not know if his ‘old job is available.’ When put to him that he was not impecunious, had a consistent work history in Vietnam and Australia, over AUD$50,000 in superannuation, and an unknown amount in a Vietnamese bank account, the Applicant insisted he could not cope:
If I can access my super then my creditors here would swallow it all. I’m so familiar with the living conditions in Australia. It would be challenging and difficult for me to adapt to living conditions in Vietnam.
[51] Exhibit A2, 7 [22].
[52] Exhibit R1, 63.
Evidence of Ms Thuy Phan
The Tribunal heard oral evidence from Ms Thuy Phan, a Director of Roo and Oz Sheet Metal Pty Ltd, who previously employed the Applicant. The witness was assisted by an interpreter in the Vietnamese language. The Tribunal did not accept Ms Phan’s statement into evidence. That was because she claimed to have written her statement in Vietnamese and had never previously seen the English version, which was lodged with the Tribunal without her original Vietnamese statement or a certified translation. Ms Phan instead relied on an earlier statement in English dated 5 February 2020, for which a certified translation was provided.[53] Ms Phan’s evidence can be summarised as follows:
(a)The Applicant had worked for her company for ‘over seven years’ and she considered him ‘hard-working,’ ‘industrious,’ ‘kind-hearted;’ and ‘honest;’
(b)The witness was shocked by the Applicant’s offending and unaware of his motivation, but was willing to re-employ him to ‘help him to stand on his feet again;’
(c)The last time the witness had seen the Applicant was when he provided her with a medical certificate for his shoulder injury in July 2018, prior to being placed on WorkCover. The Applicant had since asked her during a telephone call to re-employ him and she had agreed to do so. The phone call was in 2020 but the witness could not specifically recall when. The witness said she contacted the Applicant on one further occasion by telephone to address a residual administrative matter relating to his WorkCover arrangements;
(d)When asked about the Applicant’s gambling debts, the witness said she was not aware of this. When asked about the Applicant’s supervisory role in the cannabis enterprise, she responded: ‘That’s the first time I heard that. I’m really shocked;’
(e)When asked what she understood the Applicant’s medical restrictions to be during the period he was on WorkCover, the witness said he was precluded from doing any work, even light duties, and had to ‘just stay at home.’ She said these instructions were conveyed to her and the Applicant during a meeting with WorkCover staff. She agreed the Applicant’s work in the cannabis enterprise was inconsistent with his medical restrictions;
(f)The witness said that during the Applicant’s employment the company paid all superannuation entitlements into an account approved for that purpose; and
(g)When asked by Mr Harvey whether despite what she had learned she would still employ the Applicant, the witness said she would. This was conditional, however, on the Applicant making a ‘solemn promise’ in writing that he would never reoffend, which would be witnessed. If he broke the law, she would ‘dismiss him on the spot.’
[53] Exhibit R1, 71-72.
Evidence of Mr Thien Quoc Vo
The witness gave evidence with the assistance of an interpreter in the Vietnamese language. He adopted his statement as true and accurate.[54] His evidence is summarised as follows:
(a)The witness said he had known the Applicant for eight years and they were formerly co-workers. The Applicant had previously rented a room from him for ‘some months…a few years ago,’ but then moved out to live with someone else;
(b)The last time the witness had seen the Applicant was prior to him going on Workcover in July 2018. The Applicant contacted him by telephone ‘just a few months ago’ while preparing for this hearing, to ask for accommodation support;
(c)The witness said he and the Applicant mainly interacted at the workplace and the witness found him to be a ‘sociable person who mixed well and was ready and willing to help new workers.’ The witness knew the Applicant was divorced but never asked about his personal life. He said their social interaction was coffee ‘just a few times a year,’ and agreed they were more work acquaintances than friends; and
(d)The witness was unaware why the Applicant had offended, or about any borrowings from loan sharks or claims that the loan sharks might harm him. The witness said he was ‘a little bit concerned’ by that news but felt he would be protected by Australian authorities and would still provide the Applicant with somewhere to stay until he could make his own arrangements. He expected the Applicant would repay him for the accommodation and living expenses at a later stage if able.
[54] Exhibit A3.
Evidence of the Ms Thuy Bui
The witness gave evidence with the assistance of an interpreter in the Vietnamese language. She adopted her statement as true and accurate.[55] Her evidence is summarised as follows:
(a)The witness met the Applicant in prison over a 12-day period in 2019-20 while delivering information relating to anger management and problem gambling, exclusively to Vietnamese inmates. She had since spoken to him on the telephone one or two times when he asked her to provide a statement; and
(b)The training the witness provided was ‘general information’ only and ‘not counselling.’ The Applicant was one of ten attendees and she found him to be enthusiastic, attentive, and a ‘model student.’
[55] Exhibit A4.
PURPORTED CASE LAW COMPARATOR
In a Supplement to Applicant’s Contentions lodged on 16 December 2020, Mr Harvey drew the Tribunal’s attention to a recent case and made the following submissions:
In TVTM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4168 (9 October 2020) [TVTM], the Tribunal set aside cancellation of an applicant’s visa, despite a prolonged history of violent crime in Australia, spanning some eighteeen years. The applicant in that case, had been sentenced to numerous custodial sentences, culminating in a prison sentence of fifteen months. The Tribunal in that case, set aside the delegate’s decision the cancel the applicant’s visa.
The basis for the favourable decision in that case, appears to be the presence of the applicant’s ten Australian children.
By comparison, the Applicant in the present case, was punished for non-violent offences spanning a mere 4 months. It appears to be the Applicant’s ill luck that he does not have the benefit of extensive progeny.
On the basis the Tribunal’s recently demonstrated capacity for leniency, we further ask the Member, in view of the complete absence of violence in the present Applicant’s offending, to apply the same leniency as was done in TVTM.
(Errors in original)
Each case before the Tribunal turns on its own facts and is considered de novo. In TVTM, visa cancellation arose from quite different circumstances, contextualised by drug and alcohol misuse. The applicant also had a partner and ten children. The facts are clearly distinguishable and TVTM is not a case where a principle of consistency might be invoked.
PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Clause 13.1 of the Direction states:
(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.
(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 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
a) The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that 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, are serious;
d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f) The cumulative effect of repeated offending;
g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i) Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act.
The Applicant was tried with a co-offender and her Honour, Judge Gwynn, found their roles and responsibilities were ‘clearly very different.’ The co-offender was in Australia on an expired tourist visa and was found to be a ‘crop sitter’ for a relatively short period. He received a 16-month sentence of imprisonment, half that of the Applicant.[56] In contrast, the Applicant’s role was described as follows:
…this is a serious example of a serious offence.
Whilst there was some debate during your plea hearing as to how you could be best described, you could not be described as a mere ‘crop sitter.’ Nor could I take the view that you were a principal or that you were responsible for establishing any one of these grow houses or the equipment contained therein or for setting up the electrical bypasses, but you clearly had an important and trusted role. I see you as a form of supervisor. Your counsel used the word 'caretaker'.
Your role was an essential one to this highly planned and sophisticated business of cannabis growth and…production with the view that the drug would ultimately then enter our community. It is a lucrative business with enormous negative impact in terms of both health ramifications and criminal behaviour. Your role was to assist in that process and to shield principals in such enterprises from detection, and you did so for financial reward in terms of being paid for your service. Your role and your offending itself is at least at mid-level in terms of objective seriousness.
Your moral culpability would appear to be high in the sense that you knew you were involved in illegal activity. You were motivated by earning money, even if to pay off your own debts. You are not a drug or alcohol user and you must have been instructed in your tasks, which you performed accordingly.[57]
[56] Exhibit R1, 30 [34].
[57] 28 [24]-[27].
The Applicant does not dispute that his offending was serious, but continued to claim he was a ‘crop sitter,’ which was rejected by the Court.[58] It was submitted by Mr Harvey that the Applicant’s offending ‘involved no violence, no misleading conduct, and [without] the benefit of any hindsight or warning ‘.[59]
[58] Exhibit R2, 27[7];[9]; [12].
[59] Applicant’s Statement of Facts, Issues and Contentions (ASFIC), 7 [16].
Mr Orchard submitted that the commercial supply of drugs should be viewed seriously and that the Applicant’s theft offences, involving the bypassing of electricity, heightened the seriousness of his offending.
Tribunal findings: The nature and seriousness of the conduct
The Tribunal accepts that the Applicant’s offending was not violent, sexual, or against a woman or child. It is also clear he has no prior criminal history and has not previously received a warning from immigration authorities, noting that the absence of such a warning should not be considered in an Applicant’s favour: cl 13.1.1(1)(h) of the Direction.
The following aspects of cl 13.1.1(1) of the Direction are relevant in this matter:
(a)13.1.1(1)(a): The cannabis seized was over six times the amount required to be considered a commercial quantity and the Applicant was not merely a crop sitter. The Tribunal respectfully adopts the Court’s finding that this was a serious example of a serious crime, which weighs heavily against the Applicant; and
(b)13.1.1(1)(d): Cultivation of a commercial quantity of a drug of dependence is an indictable offence under the Drugs, Poisons and Controlled Substances Act 1981 (Vic), attracting a maximum sentence of 25 years imprisonment: s 72A. The maximum sentence for theft of electricity is 10 years imprisonment.[60] The Applicant’s sentences were significantly below these maximum penalties. Nevertheless, imprisonment is the most severe sentencing order available in Victoria.[61] A total effective sentence of 34 months imprisonment for a first-time offender reflects the objective seriousness of the Applicant’s crimes.
[60] Exhibit R1, 24.
[61] See for example: Sentencing Advisory Council, ‘Imprisonment,” <
The Tribunal finds the Applicant has engaged in very serious offending behaviour.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 13.1.2 of the Direction states in part:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (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. In Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], Mortimer J reflected on this task as follows:
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.”
Determining what constitutes an unacceptable risk was elaborated upon in Nigro v Secretary to the Department of Justice (2013) 304 ALR 535 at [111]:[62]
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(footnote omitted)
[62] Cited with approval by Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117 at [42]-[43].
The High Court has held that past actions are legitimate predictors of future behaviour.[63] Katzmann J, in Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, similarly reasoned at [59] that the ‘risk of harm posed by the conduct in which the person has engaged in is obviously relevant to the risk…he might in the future engage in.’
[63] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579.
Claims and contributory factors
The Applicant continued to claim in the present hearing that his role was to water the cannabis, with no supervisory role or ‘concept of how the enterprise was organised.’[64] It was further submitted he ‘had no role in continuing the illegal use of electricity for the purpose of drug cultivation.’[65]
[64] ASFIC, 3 [19]; [22]; Exhibit R1, 61.
[65] Ibid, [23].
The Applicant contextualised his offending as resulting from ‘economic desperation.’[66] He claimed his gambling escalated after his divorce and while on medical leave from work,[67] causing him to engage in unsustainable borrowing. This included loans at ‘very high interest rates’ from people he claimed to have met at the TAB.[68] He said that his Work Cover payments were insufficient to service his debts[69] and his creditors threatened his life:
……unable to repay the money that I had borrowed with interest to loan shark. My life has been threatened if I don’t pay the money back and they’ve advised me I don’t have the money, then I have to work for them to repay the debt. I have no other choice than accepted to work for them.[70]
(Errors in original)
[66] Ibid, 7 [16].
[67] Exhibit R1, 68.
[68] Ibid, 88.
[69] Ibid, 69.
[70] Ibid, 88.
The Applicant agreed he did not submit to the Court that he was threatened or coerced into joining the cannabis enterprise. The first time these claims were made was in 2019 to immigration authorities in the context of possible visa cancellation. The first time the Applicant made claims about fearing harm from Vietnamese creditors was in his oral evidence during the current hearing. The Applicant also claimed in his submissions to immigration authorities that he was disadvantaged by a ‘lack of knowledge of…Australian law,’ and did not understand the potentially ‘hefty penalty’ if caught.[71] In his most recent statement, he explained his participation in the cannabis enterprise without reference to threats or coercion, instead submitting he saw it as a way to earn ‘quick’ and ‘easy’ money:
[They] then approached me and offered me job to take care of the plants and I could get quick money to pay back the loan sharks. The way they told me seemed to be very an easy work and I did not think hard enough about the serious consequences…I did not think carefully about my actions…until I was arrested.[72]
(Errors in original)
[71] Ibid.
[72] Exhibit A1, 2.
Societal effects of cannabis
According to the Australian Criminal Intelligence Commission, cannabis is a depressant drug that causes short and long-term effects.[73] The provision of commercial quantities of cannabis into the Australian community has been the subject of previous commentary by the courts and this Tribunal. In Le and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3130 at [31], the comments of Judge Bennett in the District Court of New South Wales were noted:
There is the populist view expressed by some 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 I do not think 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.
[73] Australian Criminal Intelligence Commission, Illicit Drug Data Report 2018-19 (September 2020) < evidence
The Tribunal has considered a report from psychologist Dr Debra Bennett dated 17 November 2020. Her report is based on a two-hour interview with the Applicant on 13 November 2020 via video link. In assessing the Applicant’s risk of recidivism, Dr Bennett used an actuarial assessment tool called The Level of Service Inventory – Revised (LSI-R). She stated the Applicant:
(a)was devastated by the failure of his marriage, and his lack of past intimate relationships had ‘denied him the usual developmental experiences that better equip the individual to deal with intimate partner break-ups;’
(b)started gambling after being stood down on Work Cover payments and quickly became addicted, causing him to ‘chase his losses’ and borrow $50,000 from ‘loan sharks;’
(c)met the diagnostic criteria for ‘Major Depressive Disorder, severe, single episode [DSM-5: 296.23]’ after separation from his wife, then developed ‘Gambling Disorder [DSM-5: 312.31, moderate]’ as a result of emotional stressors arising from separation;
(d)did not appear to have any pre-existing mental disorder or a drug history. His increased alcohol consumption after separating from his wife ‘may well have played a role in disinhibiting him from excessive gambling;’
(e)became involved in the crop enterprise, which he knew was illegal, but nevertheless ‘ignored the probability of consequences.’ He now acknowledged he was the ‘sole contributor’ to his current situation, rued his past gullibility, and with the benefit of hindsight, ‘realises the pervasive impact of his behaviours;’
(f)conveyed a narrative that ‘demonstrated poor and maladaptive coping strategies for life's difficulties, but he displayed a developing maturity regarding his significant lapses in judgment;’
(g)was most prominently anxious about being able to repay the money his family in Vietnam had loaned him and feared they may ‘disown him;’ and
(h)demonstrated partial risk in respect of his restricted social network and found ‘his highest risk factor relates to his financial situation.’ Dr Bennett said he has:
…few risk factors for offending in general. In particular, his lack of criminal history prior to the index offences, his attendance and level of attainment in his education history, his lack of drug problems and previous lack of alcohol problems, the absence of significant mental health problems prior to his Major Depression Disorder and ensuing Problem Gambling, his attitude toward offending, capacity for marital harmony, accommodation stability, non-offending peer group and the existence of leisure activities all serve to lower his risk…As such, Mr Nguyen scored in the lowest category of "Low Risk /Needs." This category is assigned approximately 11.7% chance of recidivism.
Dr Bennett’s report concluded:
His highest risk factor is his financial situation and an increased capacity to secure full-time employment would significantly assist him to make pro-social choices. Protective factors against offending for Mr Nguyen include his significant shame that he has brought upon himself and his family. He expressed remorse regarding the pervasive impact of his offending behaviours on the community. Mr Nguyen's current state of emotional suffering appears to be significant and therefore should be a substantial deterrent for future offending behaviours and poor choices.
Dr Bennett gave oral evidence at the hearing in which she adopted her report and was cross-examined. Dr Bennett’s oral evidence is summarised as follows:
(a)Dr Bennett is a sworn member of Victoria Police and has also been a psychologist for 14 years. She received a copy of the Tribunal’s Guideline on Persons Giving Expert and Opinion Evidence. Dr Bennett confirmed that her report was predominantly based on the Applicant’s self-reported claims, but also encompassed the information sources detailed at paragraph 5 of her report;
(b)Dr Bennett said the Applicant’s ‘major depressive disorder and problem gambling’ originated from the demise of his marriage. This was his first romantic involvement, which commenced at the age of 28. Dr Bennett said this was unusually late for a first relationship and the Applicant had not developed ‘resiliency’ through past relationships. She said he also had a lot of ‘time on his hands’ after the divorce as the result of a shoulder injury, which contributed to his ‘spiral downwards;’
(c)Dr Bennett was told by the Applicant that his gambling escalated to ‘numb his feelings’ and he soon found himself in ‘serious debt.’ When asked if it was unusual for someone in their 40s to suddenly develop a gambling addiction, Dr Bennett said it was ‘more typical for females to develop a gambling addiction in mid-life.’ She assessed the Applicant as no longer ‘having a pathological gambling disorder;’
(d)When asked by Mr Harvey where she saw the Applicant’s role in the cannabis enterprise, Dr Bennett responded: ‘I see him as a worker bee – down the bottom.’ She said the Applicant was considered ‘expendable’ by organised crime figures. She said it was those further up the chain rather than the Applicant, who had the skills to establish and manage these enterprises while not being caught;
(e)Dr Bennett said the LSI-R comprised a mixture of static and dynamic variants divided into ten domains. She assessed the Applicant as being in the ‘lowest category available,’ representing an ‘11.7% chance of recidivism.’ Dr Bennett was referred to paragraph 36 of her report which found the Applicant has few risk factors for offending in general, with his highest risk factor relating to ‘financial situation’ and partial risk being noted in relation to ‘restricted social network;’
(f)During cross-examination, Dr Bennett was asked if the Applicant’s continuing debts added to his risk of reoffending. She responded that he ‘owed his family $50,000,’ but had assumed he no longer needed to pay any money back to the loan sharks in Australia. When asked by Mr Orchard if that was because of the high price the Applicant had already paid through imprisonment, which meant he was ‘off the hook,’ Dr Bennett responded: ‘Yes’;
(g)Mr Orchard asked Dr Bennett about the Applicant’s evidence at the present hearing that he still claimed to owe approximately $81,000 to creditors in Australia and Vietnam. Dr Bennett said she was not ‘aware of that breakdown at all,’ but it did not change her assessment of the Applicant’s recidivism risk;
(h)The following exchange occurred after Mr Orchard asked Dr Bennett about the inconsistency between the Applicant’s claims about being a crop-sitter and the Court’s findings that he played a more prominent role:
MR ORCHARD: The applicant also gave evidence…that essentially he was a crop sitter and was not in a supervisory role. The Court in sentencing the applicant, found expressly the opposite. It found that the role he played was greater than that of a crop sitter, and that he was in a supervisory role. Knowing that he has reported to you that he was merely a crop sitter, instead of acknowledging that higher level of culpability, that increases his risk doesn’t it? Because it shows he lacks either an understanding or insight into his original offending?
DR BENNETT: No, without access to more information such as perhaps speaking with the police that were involved, but from what is in front of me, I am not sure why the Tribunal thinks he was higher up the tree so to speak; we have a man here who is hiring a car in his own name to get around to the different crop houses. Rule 101 is – if you are going to hire a car – the idea is because you want to hide your identity. That’s what the next man up the tree would do. That’s how you go about keeping your identity secret. But he hasn’t. He has hired a car in his own name…
MR ORCHARD: …The Court expressly found that he wasn’t a crop sitter on the facts before it, and the Tribunal is bound by those facts. In circumstances where the applicant has disagreed with those facts…or acknowledged them to the requisite degree – that increases his risk of reoffending, doesn’t it, because he hasn’t acknowledged the factual findings of the Court, that he pleaded guilty to?
DR BENNETT: Well no, once again, that is not part of an actuarial assessment. In fact, I don’t know whether you will find this surprising or not, but…whether or not a person admits to offending or admits to remorse, is not a risk factor for future offending. That goes for sexual offending as well. Most people find that odd, and I am not sure whether you do. But that’s the case.
MR ORCHARD: … when you are doing the actuarial tests and combining it with the other factors you mentioned before, had this information been before you, that he has not in fact acknowledged the role that the court says he has, you are saying if that was before you, before you wrote this report, that wouldn’t have made any difference to your assessment of risk?
DR BENNETT: No it wouldn’t have made any difference to my assessment of risk. I have that information, that the court believed that he was more than a mere crop sitter. But through my questioning of him, he had no indication that was the case.
MR ORCHARD: I take it from what you have said, you prefer his account to the findings of the Court?
DR BENNETT: Well what I am doing is using his narrative, plus other indicators within the file, such as he drove a hire car in his own name to the scene.
(Emphasis added)
Remorse
The Tribunal has considered the letters in evidence from some of the Applicant’s former workmates, as well as a supervisor and Director of the Applicant’s previous employer.
Tribunal findings: Strength, nature and duration of ties
The Applicant was 32 years of age on arrival in Australia, having spent his formative years in Vietnam. His family ties are exclusively in Vietnam. After a decade in Australia he still only has ‘limited English’[124] and modest ties to the community, predominantly former work colleagues. Even amongst his workmates, it is noteworthy from the evidence of Mr Thien Quoc Vo, who has offered the Applicant accommodation if released, that their relationship after a decade is that of acquaintances rather than friends.
[124] Ibid, 31 [41].
The Tribunal notes the Applicant’s written and oral claims that he has always paid his ‘tax fully and officially.’ On his own evidence, however, he tended three cannabis crop houses and earned a cash advance of $15,000 and cash income of up to $800 per week, while concurrently receiving weekly Work Cover payments.[125] He conceded in his oral evidence that the cash payments were undeclared. The evidence of his employer is that the Applicant was not permitted to do any work while receiving WorkCover payments. Consequently, the virtue the Applicant seeks to ascribe to paying taxes ‘fully and officially’ in Australia rings somewhat hollow.
[125] Exhibit A2 [30].
The Tribunal infers from Mr Phong Nguyen’s letters and those of a Buddhist Abbott in Melbourne, that the Applicant may have some broader ties to the Vietnamese community in Victoria, although these are not particularised. General claims were made about limited past volunteering in the community centre gardens in Sunshine and attendance at Vietnamese cultural festivals. The evidence about community contribution is limited at best.
It remains unclear to the Tribunal whether the ties the Applicant relies upon are with Australian citizens or those with an indefinite right to remain in Australia within the meaning of the Direction. Even if it were accepted that all supportive letters before the Tribunal are from Australian citizens or those with a permanent right to remain in Australia, this reflects a limited and modest connection to the community at best. The Tribunal accepts these people may be disappointed if the Applicant’s visa cancellation is not revoked. On balance, however, this consideration weighs only slightly in favour of revocation.
IMPACT ON AUSTRALIAN BUSINESS INTERESTS
Clause 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence that any work undertaken by the Applicant in Australia enlivens consideration of Australian business interests within the meaning of the Direction. The Tribunal places no weight on this consideration.
IMPACT ON VICTIMS
Clause 14.4(1), of the Direction states:
Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is no evidence about this consideration and the Tribunal affords it neutral weight.
EXTENT OF IMPEDIMENTS IF REMOVED
Clause 14.5(1) of the Direction states that:
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.
All the Applicant’s family members live in Vietnam.[126] He was raised and educated there and reports always being ‘gainfully employed’ before departing for Australia at the age of 32.[127] The Applicant did not refer to any language or cultural barriers. He has returned to Vietnam on four occasions, most recently in 2018.[128] There is no evidence that the Applicant’s opportunities in Vietnam are any different to those of other Vietnamese citizens.
[126] Exhibit R1, 60.
[127] Ibid, 29 [28].
[128] Ibid, 91-92.
The Applicant is currently 42 years of age and did not refer in his oral or written evidence to any diagnosed medical or psychological conditions precluding an immediate return to unrestricted work.[129] Since arriving in Australia, he has consistently worked. Although placed on WorkCover in 2018 for a relatively brief period, his current evidence is that any shoulder problem has resolved.
[129] Ibid, 63.
The Applicant has undertaken additional vocational courses and English language training while imprisoned, which he says will improve his capacity to find additional work beyond the job offer with Roo and Oz Sheet Metal. The Applicant also has an Australian superannuation account balance exceeding $50,000 and a Vietnamese bank account with an unknown balance.
It was submitted in the ASFIC that the Applicant:
…will face enormous difficulties in returning to a country with no job, no accommodation and no support, all of which he has here in Australia.
The Applicant submitted that his family in Vietnam would ‘lose everything’ because they have purportedly mortgaged their house to borrow money for him. There is no evidence from any family members or the Vietnamese financial institution they purportedly borrowed from about this secured debt. The Applicant also referred to difficulties in re-registering on the Vietnamese housing database.
Tribunal findings: Extent of impediments if removed
The Applicant is 42 years of age and suffers no diagnosed medical or psychological conditions. There are no substantial language or cultural barriers confronting him in Vietnam, where all his family members reside and where he spent the first 32 years of his life. He has a close and continuing connection to his family and familiarity with Vietnam.
The submission that the Applicant is confronted by a scenario of ‘no job, no accommodation and no support’ if removed to Vietnam is not accepted. There is no evidence he is impecunious, and the evidence discloses he has been able to fund three international holidays to Vietnam since early 2017. It is noteworthy that he has over AUD$50,0000 in Australian superannuation and an unknown amount in a Vietnamese bank account.
In the absence of corroborating evidence to the contrary, the Tribunal is not persuaded the Applicant could not count on any support from his family in Vietnam. The evidence discloses he and his family have kept in touch and enjoy a mutually supportive relationship. Dr Bennett refers to him as having a ‘loving family.’ Even if the absence of family support was accepted, there is no evidence the Applicant would not be entitled to the same level of support as any other Vietnamese citizen.
The Tribunal accepts the Applicant may not be able to earn as much in Vietnam or have the same access to other entitlements. The Tribunal’s task, however, is to consider his circumstances by reference to ‘social, medical and/or economic support available to them in that country’ not by comparison with Australia.
The Applicant’s claimed indebtedness does not constitute a persuasive impediment, given the inconsistent and uncorroborated nature of his evidence. There is also no evidence the Applicant would be unable to re-register on the Vietnamese housing database if returned. Having considered the ‘Household Registration’ section in the DFAT Report,[130] the Tribunal accepts re-registering may be administratively inconvenient but is not a persuasive impediment to return.
[130] Exhibit T1, 5.44 – 5.48.
There is no evidence that the Applicant’s separation from his former work colleagues or others in his limited social circle in Australia will cause other than disappointment or sadness. Given the Applicant lived in Vietnam until the age of 32 and has returned on several occasions since arriving in Australia, the Tribunal considers it more probable than not that he has some social connections to draw upon or may be able to rebuild them.
On balance, and predominantly because of his decade-long residence in Australia, the Tribunal finds this consideration weighs moderately in favour of revocation.
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 if there is ‘another reason’ why the mandatory cancellation of his visa should be revoked, the Tribunal has applied the considerations at Part C of the Direction to the specific circumstances of his case.
The Tribunal acknowledges the potential for other considerations to be afforded equal or greater weight than a primary consideration.[131] Given the totality of the evidence, however, the Tribunal does not consider it appropriate to depart from the guidance in the Direction that primary considerations ‘should generally be given greater weight than the other considerations:’ cl 8(4) of the Direction.
[131] HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013 at [38] (Banks-Smith J); Minister for Home Affairs v HSKJ (2018) 266 FCR 591 at [35] (Greenwood, McKerracher and Burley JJ); FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [66] (Thawley J).
Only the first and third primary considerations are relevant, with both weighing against the Applicant. He has engaged in very serious offending behaviour and constitutes a low but not immaterial risk of reoffending. While the Applicant has lived in Australia for approximately eight years before imprisonment, the community has a low tolerance for serious crimes. The Applicant helped produce a crop of cannabis more than six times the amount normally constituting a commercial quantity. He continues to downplay his culpability. The community would expect he should not hold a visa.
The Applicant’s non-refoulement claims are general, uncorroborated, inconsistent, and speculative. His fears rise no higher than a belief that creditors in Australia and Vietnam may contact someone in Vietnam, who may then harm him or his family. His evidence does not enliven Australia’s non-refoulement obligations.
Of the considerations weighing in favour of revocation, the Applicant has some limited ties in Australia. He has also made some contribution through employment, volunteering and engagement with his ethnic community. In terms of impediments if removed, the Applicant is relatively young, in good health, and has Australian superannuation and perhaps Vietnamese bank savings to draw upon. He would be returning to a country where all his family reside and where he spent the first 32 years of his life.
Having weighed all the relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to mandatorily cancel the Applicant’s visa should be revoked. That is because the two relevant primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ each weigh moderately against revocation. These considerably outweigh the relevant other considerations of ‘Strength, nature and duration of ties,’ which weighs slightly in favour of revocation and ‘Extent of Impediments if removed,’ which weighs moderately in favour of revocation.
DECISION
It follows that the Tribunal affirms the decision under review.
I certify that the preceding 135 (one hundred and thirty five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
[sgd]………………………………….
AssociateDated: 6 January 2021
136. Dates of hearing:
137. 21 and 22 December 2020
138. Advocate for the Applicant:
139. Mr David Harvey
140. Advocate for the Respondent:
141. Mr Christopher Orchard
142. Solicitors for the Respondent:
143. Sparke Helmore Lawyers
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