Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 4171
•16 October 2020
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4171 (16 October 2020)
Division:GENERAL DIVISION
File Number(s): 2018/7373
Re:Van Do Dat Nguyen
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Deputy President Boyle
Date:16 October 2020
Place:Perth
The decision of the delegate of the Respondent dated 12 December 2018 not to revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s Class BB Subclass 155 – Five Year Resident Return (permanent) visa is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
................................[SGD].....................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – mandatory visa cancellation – Federal Court remittal – s 501CA(4) – another reason why the cancellation decision should be revoked – Direction 79 – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – best interests of the child – strength, nature and duration of ties – extent of impediments if removed – decision set aside and substituted
LEGISLATION
Misuse of Drugs Act 1981 (WA) – s 6(2)
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(ii)
Sentence Administration Act 2003 (WA) – ss 29, 30
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Jacobs and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1524
Lansdowne and Minister for Home Affairs [2019] AATA 2448
McCarthy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2939
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 363 ALR 325
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Jokic [2020] FCA 1434
Nguyen and Minister for Home Affairs [2019] AATA 370
Nguyen v Minister for Home Affairs [2020] FCA 127
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Singh v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 556
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Trang and Minister for Home Affairs [2019] AATA 4087
VPKY and Minister for Home Affairs [2019] AATA 352
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466ZGWQ v Minister for Home Affairs [2019] FCA 1096
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Home Affairs, 28 February 2019) – paras 6.1,6.1(3), 6.2, 6.3, 7(1)(b), 8, 8(3), 8(4), 8(5), 13(2), 13(2)(a), 13(2)(b), 13(2)(c), 13.1, 13.1(2)(a), 13.1(2)(b), 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(g), 13.1.1(1)(h), 13.1.1(1)(i), 13.1.2, 13.1.2(1)(a), 13.1.2(1)(b), 13.2, 13.3, 14, 14(1), 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(d), 14(1)(e), 14.2, 14.2(1)(a)(i), 14.2(1)(b), 14.4, 14.4(1), 14.5(1), Part C
REASONS FOR DECISION
Deputy President Boyle
16 October 2020
the application
The Applicant seeks review of a decision of a delegate of the Respondent dated
12 December 2018 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the decision made under s 501(3A) of the Act to cancel the Applicant’s Class BB Subclass 155 – Five Year Resident Return (permanent) visa.The Applicant’s visa was cancelled because the Applicant did not pass the character test by reason of his substantial criminal record and because he was serving a full-time term of imprisonment for an offence against a law of a State.
The application for review, lodged online with the Tribunal on 17 December 2018, was made in accordance with s 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa. I am satisfied that I have jurisdiction to review the decision.
Administrative/Judicial history
The application was originally heard by a differently constituted tribunal on
28 February 2019. By decision dated 8 March 2019[1] that tribunal affirmed the delegate’s decision of 12 December 2018 not to revoke the cancellation of the Applicant’s visa.[1] Nguyen and Minister for Home Affairs [2019] AATA 370.
The Applicant appealed that decision of the tribunal to the Federal Court of Australia.
By orders made by Banks-Smith J on 14 February 2020 (Nguyen v Minister for Home Affairs[2] (the appeal decision)) the original tribunal’s decision was quashed and a writ of mandamus was issued requiring the Tribunal, differently constituted, to determine the Applicant’s application according to law.[2] [2020] FCA 127.
Background
The Applicant is a 25 year-old citizen of Vietnam.
He arrived in Australia in June 2009 as a 14 year-old to live with his mother, step-father and sister. The Applicant’s mother had, sometime prior to then, come to Australia. The Applicant had remained in Vietnam in the care of other family members.
The Applicant has continuously lived in Australia since arrival except for one trip overseas (Vietnam) from 19 December 2011 to 25 January 2012.[3]
[3] R3, 243.
On 11 December 2014 the Applicant married his wife. They met as students at TAFE in Sydney where the Applicant was studying hospitality and his wife was studying business. The Applicant’s wife is a Vietnamese citizen who is currently a temporary resident of Australia.[4]
[4] Applicant’s wife’s statutory declaration of 22 May 2018; R3, 202.
The Applicant completed high school Year 12 in 2014 and then completed the TAFE hospitality course. He then worked as a barista at a café in Cabramatta before moving to Perth in 2015. The Applicant’s evidence was that he came to Perth with his wife to help his sister manage her nail salon while she was on maternity leave.
The Applicant’s criminal history
On 14 June 2016 the Applicant was arrested by Western Australia Police in connection with an investigation in respect of the trafficking of illicit substances between New South Wales and Western Australia.
On 17 March 2017 the Applicant entered guilty pleas in the Perth Magistrates Court in respect of three charges, including two indictable offences, for which he was sentenced by Stevenson DCJ in the District Court on 8 March 2018.
The Applicant’s criminal record is as follows:
Charge No
Offence
Offence Date/s
Conviction Date
Result
IND1112/2017 Count 1
(PE 38781/2016)Possession of stolen or unlawfully obtained material; Criminal Code (WA) s 417(1)
Max sent: 7 yrs’ imp.
13 May 2016
8 March 2018
18 mths’ imp. from
14 Jun 2016 (CC) (Head Sentence)IND1112/2017 Count 2
(PE 13503/2017)Possession of a prohibited drug, namely MDMA, with intent to sell or supply it to another; Misuse of Drugs Act 1981 (WA) s 6(1)(a)
Max sent: 25 yrs’ imp. and/or
$100,000 fine
14 Jun 2016
3 yrs 6 mths’ imp.
from 14 Sep 2016 (PCM)PE 13504/2017
Possession of a prohibited drug, namely heroin; Misuse of Drugs Act 1981 (WA) s 6(2)
Max sent: 2 yrs’ imp. and/or $2,000 fine
6 mths’ imp. from
14 Jun 2016 (CC)TES: 3 yrs 9 mths’ imp. from 14 Jun 2016
Drug trafficker declaration; Misuse of Drugs Act 1981 (WA)
s 32A(1).Parole eligibility order; Sentencing Act 1995 (WA) s 89(1)
I note that the National Police Certificate[5] which was included in the G documents before the original tribunal at the time of the decision in March 2019, recorded four convictions on 8 March 2018 rather than the three convictions shown in the Western Australian Police History For Court – Criminal and Traffic tendered in these proceedings[6] and reproduced above. The National Police Certificate records two convictions for possession of a prohibited drug under s 6(2) of the Misuse of Drugs Act 1981 (WA), each of which resulted in a sentence of six months’ imprisonment (concurrent), whereas the Western Australian Police history records only one such conviction on that date and one sentence of six months imprisonment. This discrepancy was noted by the previous tribunal in the decision at [40] wherein it was also noted that the Respondent conceded that that additional conviction did not form part of the Applicant’s sentencing. Looking at the sentencing judge’s remarks,[7] that concession was correct. While it would not have been material to my determination in any event, I will proceed on the basis that the Applicant’s criminal record is that set out in the Western Australian Police Certificate[8] rather than the National Police Certificate.
The Respondent’s case proceeded on that basis. While it is not material to this determination, it is obviously concerning that the National Police Certificate appears to be wrong.
[5] R3, 159.
[6] R1.
[7] R3, 162.
[8] R1.
The Applicant’s visa was cancelled under s 501(3A) of the Act on 26 April 2018.[9] The letter by which the Applicant was advised of the cancellation of his visa invited the Applicant to make representations about revoking the cancellation of the visa.
[9] R3, 244-249.
The Applicant duly made representations about revoking the cancellation of his visa.[10]
[10] R3, 168-225.
By decision dated 12 December 2018[11] the delegate of the Respondent refused to revoke the cancellation decision. The Applicant was notified of this decision by email to his authorised representative on 14 December 2018.[12]
[11] R3, 145.
[12] R3, 141-143.
On 17 December 2018 the Applicant lodged the application with this Tribunal for the review of the delegate’s decision.[13]
[13] R3, 138-139.
THE ISSUE
The issue for determination is whether I should exercise the power in s 501CA(4) of the Act to revoke the mandatory cancellation of the visa. That will require determination of:
(a)whether the Applicant passes the character test (as defined by s 501 of the Act); and
(b)if not, whether there is a ‘another reason’ why the mandatory cancellation decision should be revoked.
THE HEARING
As noted at [4] and [5] above, this matter was originally heard on 28 February 2019 and subsequently remitted by the Federal Court by orders made on 14 February 2020.
The matter was heard in accordance with the Federal Court orders on 4 September 2020. The Applicant was represented by Mr D Blades of the independent bar and the Respondent was represented by Mr J Papalia of the Australian Government Solicitor. Appearances were in person.
The Applicant gave evidence and was cross-examined. He appeared by video link from the Christmas Island Immigration Detention Centre. While he answered some questions in English, the majority of the Applicant’s evidence was given through an interpreter.
The only other witness to give evidence at the hearing was the Applicant’s mother.
The whole of her evidence was given through an interpreter.
The following documents were admitted into evidence:
(a)Applicant’s Statement of Facts, Issues and Contentions, dated 27 May 2020 (Exhibit A1);
(b)
Western Australia Police, History for Court – Criminal and Traffic, compiled
11 June 2020 (Exhibit R1);
(c)Respondent’s Statement of Facts, Issues and Contentions, dated 23 June 2020 (Exhibit R2); and
(d)Remittal Bundle, received 24 April 2020 (Exhibit R3).
Exhibit R3, the Remittal Bundle, included, amongst other things:
(a)the sentencing submissions made on behalf of the Applicant prior to his sentencing in the District Court on 8 March 2018;
(b)statutory declaration of the Applicant dated 24 January 2019;
(c)
statutory declaration of Thi Hong Huynh (Applicant’s mother) dated
24 January 2019;
(d)
report by Flora Truong, clinical psychologist, regarding Thi Hong Huynh dated
6 November 2018;
(e)statutory declaration of Y Thi Nhu Nguyen (Applicant’s wife) dated 24 January 2019;
(f)Applicant’s representations to Department on revocation of cancellation of the visa including Personal Circumstances Form completed by Applicant and submissions prepared by Applicant’s then lawyers, Jack Ta & Associates;
(g)undated handwritten statement of Applicant;
(h)statutory declaration of Thi Hong Huynh (Applicant’s mother) dated 22 May 2018;
(i)statutory declaration of Y Thi Nhu Nguyen (Applicant’s wife) dated 22 May 2018;
(j)statutory declaration of Thi Hong Nguyen (Applicant’s sister) dated 22 May 2018;
(k)report by Mercurio Cicchini, clinical psychologist, on Applicant dated 15 May 2018;
(l)various certificates of participation in courses while in prison; and
(m)certificates in hospitality issued by NSW TAFE Commission.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) ...; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
A ‘substantial criminal record’ is defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more.
Section 501CA of the Act provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(4)The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Ministerial Direction 79
Section 499(1) of the Act provides that:
(1)The Minister may give written directions to a person or body having functions or powers under this Act ... if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act states that:
[a] person or body must comply with a direction under subsection (1).
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, named “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under 501CA” (Direction 79). The commencement date for operation of Direction 79 was 28 February 2019.
Paragraph 6.1 sets out the objectives of Direction 79. Paragraph 6.1(3) relevantly provides:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction 79 provides general guidance as follows:
(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)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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.
Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3, the decision-maker must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.
Paragraph 13(2), which is in Part C of Direction 79, provides:
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a. Protection of the Australian community from criminal or other serious conduct;
b. The best interests of minor children in Australia;
c. Expectations of the Australian community.
Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)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.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
consideration
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship[14] at [63]-[45]. The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has ‘a substantial criminal record’. This phrase, in turn is defined, relevant to this case,
in s 501(7)(c) (see [26] above) which provides that a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.[14] [2009] AATA 47; (2009) 106 ALD 666.
The Applicant has been sentenced to terms of imprisonment in excess of 12 months and, as a result, has a substantial criminal record as defined in s 501(7) of the Act and therefore does not pass the character test (s 501(6) of the Act). That is conceded by the Applicant.[15] Therefore, the only issue for consideration is whether there is a reason to exercise the discretion to revoke the cancellation of the visa under s 501CA(4)(b)(ii) of the Act (see [27] above).
[15] Applicant’s SFIC para 36.
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (Direction 79 para. 13(2)(a))
Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:
(1)...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 noncitizens 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.
Nature and seriousness of the conduct (paragraph 13.1(2)(a))
Paragraph 13.1.1(1) of Direction 79 provides:
1.In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a. The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very 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 has three convictions (see [13] above) which all arose out of the same criminal endeavour. The circumstances of those offences are set out in the sentencing remarks of Stevenson DCJ as follows:[16]
The MDMA was located in two different locations and consisted of two different quantities. The total quantity of the drug was 188.3 grams. Of that, 168 grams had a purity of about 94 per cent and 20.3 had a purity of about 84 per cent.
In addition, you have pleaded guilty to one charge of being in possession of a prohibited drug, namely heroin, for which you are to be sentenced at your request today at the same time.
…
The gravity and the seriousness of each offence is reflected by the statutory maximum penalty. The penalty in respect to count 1 on the indictment is a term of imprisonment of up to seven years. The penalty with respect to count 2 on the indictment is a term of imprisonment of up to 25 years and/or a fine of $100,000.
[16] R3, 162.
The maximum penalty for the third offence on the indictment, that relating to the possession of the heroin, was two years or a fine of $20,000. His Honour continued as follows:[17]
[17] R3, 163-164.
The reason why this type of offending is so serious is because of the incalculable harm that it does to innocent people in the community, not only those who become addicted to the use of prohibited drugs but also those who are the victims of crimes committed by users in order to obtain funds and property to fuel their addiction.
You yourself were I am told a user and you are to be sentenced on that basis.
The fact that you had your own addiction, according to you, is also partly indicated to the court to explain why you would be prepared to commit these types of offences in circumstances where you would have appreciated at all time that on apprehension you would be required to serve a lengthy term of imprisonment.
I accept, of course, that you only became aware relatively shortly before your apprehension for these offences that if you were to continue dealing in drugs in this country by reason of your non-citizenship you would in all likelihood be deported to your country of origin.
…
The circumstances of the offending have been outlined by the State prosecutor. They are accepted by you through your counsel except in respect of two matters.
The fact is that you and your wife were renting the property, the subject of the charges, when they were committed and in relation to count 1, I note what has been said by Mr Urquhart with respect to you sending the package to your brother-in-law in New South Wales rather that to yourself.
I formally incorporate those facts into these sentencing remarks without repeating them. Plainly the offending is serious. It is not isolated and did not occur in a vacuum. I accept that you were a user of drugs yourself, but you were involved as I have already indicated to counsel, in my view, in a significant commercial operation for the dissemination of prohibited drugs in the community.
Unfortunately, the outline of the facts presented by the State prosecutor and specifically incorporated into his Honour’s sentencing remarks was not before the Tribunal.
Equally unfortunately, this is not the first time that this has happened (see for example Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[18] (Pattison) at [45]-[47] and [50]). Given the criticality and immutability of the sentencing court’s findings of fact in relation to the offence or offences upon which the exercise of the power to cancel the visa was based (see HZCP v Minister for Immigration and Border Protection[19]; Minister for Immigration and Multicultural Affairs v Ali[20]; Minister for Immigration and Multicultural Affairs v SRT[21]; HZCP v Minister for Immigration and Border Protection[22] at [78]; Singh v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs[23] at [56]-[57]; Pattison at [75]–[80]) it is very important that the Tribunal have those findings of fact before it.
[18] [2020] AATA 3953.
[19] [2019] FCAFC 202.
[20] [2000] FCA 1385; (2000) 106 FCR 313.
[21] [1999] FCA 1197; (1999) 91 FCR 234.
[22] [2018] FCA 1803.
[23] [2020] FCA 556.
Stevenson DCJ’s sentencing comments continued as follows:[24]
You were an active participant. You were prepared to act as a trusted front man. You were therefore an important cog without whose involvement and willingness to play a role the drugs could not have been disseminated in the community.
You were in effect warehousing drugs and playing a role in their transition from source to other users in the community. The amount of cash, the subject of count 1, in my view is a significant amount of money.
…
I do take into account as I have already noted that you have engaged in various programs whilst you have been in custody. I accept that that is some insight by you so far as the future is concerned and an expression of an interest to rehabilitate yourself going forward.
I’ve also read your letter of apology provided to the court today. I accept that there is some insight by you and that you have expressed an intention as a young person to take control of your life on release from incarceration whether it is in this country or elsewhere.
[24] R3, 164-165.
While I did not have the facts presented by the State prosecutor and specifically incorporated into his Honour’s sentencing remarks, other documents which were before me provide some details of the Applicant’s offences. Transcripts, or extracts from transcripts, of bail applications made by the Applicant, firstly to the Supreme Court in August 2016;[25] (decision and reasons given by Jenkins J in September 2016[26]) and then to the District Court in December 2017[27] set out some of the relevant facts. The transcript of the proceedings in the District Court included the following:[28]
Mr Urquhart (Applicant’s counsel): Mr Nguyen was arrested on 14 June of last year and he was charged with attempting to supply five kilograms of methylamphetamine to another and possession of 188 grams or thereabouts of methylamphetamine with intent to sell or supply. That second charge was later amended to MDMA. One month later he was charged with possession of $75,000 suspected of being unlawfully obtained.
…
…he pleaded not guilty to the five-kilogram matter, and the six-gram matter, …it was listed for an eight-day trial… The day before the scheduled first day of that trial the State filed notice of discontinuance with respect to both those counts.
…
As I understand it, sir, from my correspondence with the State, these contentions by the defence would not be in dispute at the sentencing in March, namely that the $75,000 was posted to his 37-year-old brother-in-law in New South Wales, who was the major player in this criminal enterprise, that the money was posted to his brother-in-law because it was the proceeds of unlawfully obtained property, and it was to be sent to his brother-in-law as it belonged to him.
And with respect to the 188 grams of MDMA, that belonged to his brother-in-law and was being looked after by him, and he was going to return it to his brother-in-law on one of his regular visits to Western Australia.
[25] R3, 58-90.
[26] R3, 101-118.
[27] R3, 91-100.
[28] Transcript of hearing before Sleight CJDC on 12 December 2017; R3, 92-95.
The Applicant’s statutory declaration dated 24 January 2019[29] described the circumstances of his offending as follows:
[29] R3, 27.
9.My life flipped upside down on 14th June 2016 when I was arrested by the police. I was charged with the offence possession of drugs and possession of stolen property. Both to which I pleaded guilty to. I did not want to deny my mistakes and wrongdoings.
10.I would like to take this opportunity to explain the events that had occurred leading up to my incarceration. Even though this matter has already been submitted to the court, I wish to speak of the matter.
11.My brother-in-law, Mr Truong Giang Nguyen, who was also arrested on the same day as me, asked me to look after a suspicious package at his home in Balga. He did not tell me what was in the package. However, I eventually agreed believing that I was helping a family member for a simple favour. Afterwards, Truong would repeatedly have packages arriving at the house and asked for me to hide them in his house. When I found out that the packages contained drugs, I told Truong that I did not want to participate. I was naïve to believe that my brother-in-law has had the best intention that it was for the sake of making money to take care of our families.
12.Having look back now on my decisions, I was incredibly stupid and gullible.
I wish that I had not taken in my brother-in-law’s words, even though he was a part of our family. My wife had constantly tried to convince to stop and stay away from Truong and his illegal business. My family had warned me of the consequences of my actions that I would get arrested and deported from Australia.
13.Each action that followed involved hiding the drugs in Truong’s house and collect money from his buyers and then post it to Truong under his instructions. It was deeply regretful when I was bullied by Truong into using meth.
14.On the day of my arrest, there was a part of me that was relieved that the nightmare had ended, and that Truong would not be able to continue to make me follow his instructions and hurt other people with his criminal activities.
But the huge part of me that realised what I have done to my family that pained me the most.
15.I felt that I have abandoned my family due to my stupidity. I was the only man in the family. I was their main support. But then I was gone from them.
The Applicant was cross-examined on the events leading up to his arrest:[30]
[30] Transcript at 34-37.
MR PAPALIA: More specifically, you say that shortly before your arrest in June 2016, you found out that you could get deported if you were caught, and that consequently you had an intention to leave the family business? Mr Nguyen?
APPLICANT: Yes, sir?
MR PAPALIA: I’m asking you about a statement your counsel made before the sentencing judge, that you became aware shortly before your arrest in June 2016 that you had found out from someone that you could get deported if you were caught.
APPLICANT: Yes, sir.
MR PAPALIA: And that you say a consequence of having found out that - not just that you would go to gaol, but you would risk being sent back to Vietnam - you decided that you wished to leave the family business.
APPLICANT: Yes, sir.
MR PAPALIA: But you didn’t carry out that intention, did you?
APPLICANT: I did, sir.
MR PAPALIA: Well, no you didn’t. You continued to participate in the criminal enterprise until you were arrested by police. You were found by police, in a car with your brother in law and your sister and one of her children, having dropped off packages of what you thought was drugs to the address in Woodlands. Yes?
APPLICANT: Yes, sir.
MR PAPALIA: When police raided your home on that day, they found drugs on your kitchen table, drugs in a shoe box and a gas heater in your bedroom, and drugs in a bin in your room.
APPLICANT: Yes, sir.
MR PAPALIA: They also found a Taser in the bin, measuring equipment in the bin and a glass pipe in the bin with your passport.
APPLICANT: Yes, sir.
MR PAPALIA: You were using drugs on a daily basis, weren’t you?
APPLICANT: Yes, sir.
…
MR PAPALIA: The applicant drove to the Event Cinemas carpark in Innaloo on 14 June 2016. There he met his brother in law, his sister and one of her children. He got into the vehicle, and they travelled to a house in Woodlands. There they delivered some packages that they thought contained illicit drugs. They then returned to the carpark in Innaloo where they were arrested by police. Is that correct?
APPLICANT: Yes, that’s correct.
MR PAPALIA: When police raided his house on the same day, they found drugs on his kitchen table in a tea towel, drugs in his bedroom, specifically in a tissue box in a gas heater box, and in a black bin, which also contained his passport, a black Taser, a set of measuring scales, and a glass pipe. What were the steps he had taken to cease participating in the criminal enterprise?
APPLICANT: Your question is not clear.
MR PAPALIA: You were aware that dealing in drugs could result in a prison sentence? That is, you say you know that drugs are illegal.
APPLICANT: Yes.
MR PAPALIA: You said to the sentencing judge that shortly before your arrest in June 2016 you separately found out that you could get deported if you were caught. And that, as a consequence, you decided you wished to no longer participate in the family business. So, aside from that decision - that is, that intention that you wished to leave - what did you actually do about it?
APPLICANT: I already prepared myself. I did packing up and getting ready to return to Sydney.
MR PAPALIA: Were they the only steps you took?
APPLICANT: I did talk to them, my brother in law, that I would return all the drugs in the house to him.
…
MR PAPALIA: Judge Stevenson found that you yourself had gained financially from your participation in the criminal enterprise. So, when you say the drugs were your brother in law’s, they were in fact your family business’s. That is, they were yours as well because you were working together to sell those drugs - or to import those drugs - into Western Australia. And to sell them. Isn’t that the case?
APPLICANT: Yes, sir.
Assessing the Applicant’s offending against the considerations identified in paragraph 13.1.1(1) of Direction 79, I observe that:
(i)The Applicant’s offending has not involved a crime of violence or of a sexual nature (paragraph 13.1.1(1)(a));
(ii)The Applicant’s offending has not involved violence against women (paragraph 13.1.1.(1)(b));
(iii)The Applicant’s offending has not been against vulnerable members of the community or public officers performing their duty (paragraph 13.1.1 (1)(c));
(iv)The sentences imposed by the court were significant (paragraph 13.1.1(1)(d)). The Applicant contends that the total sentence of three years and nine months imposed by the court was “a small fraction of the maximum available”. Although the terms of imprisonment imposed by the court for the three offences were:
Count 1 – possession of $75,000 reasonably suspected of being unlawfully obtained - 18 months;
Count 2 – possession of prohibited drugs with intent to sell or supply - three years and six months; and
the possession of prohibited drug - six months,
taking into account sentencing totality principles, the court considered that it was “appropriate to order that there be some partial accumulation of the terms of imprisonment” and that “the total effective sentence which reflects the criminality involved in all of the offending and the sentencing considerations which apply” would be three years and nine months.[31]
I agree with the Applicant’s assessment that the total sentence imposed falls well short of the maximum, indicating that the court, while rightly viewing the Applicant’s offending as serious, regarded it at the lower end of the scale of seriousness for those types of offences (paragraph 13.1.1(1)(d));
(v)The Applicant’s offending has not been frequent and there has been no trend of increasing seriousness (paragraph 13.1.1(1)(e));
(vi)The Applicant could not be considered a repeat offender (paragraph 13.1.1.(1)(f));
(vii)The Applicant has not provided false information (paragraph 13.1.1(1)(g));
(viii)The Applicant had not received any warning (paragraph 13.1.1(1)(h)); and
(ix)The offences were not committed in detention (paragraph 13.1.1(1)(i)).
[31] R3, 166.
By their nature, drug offences, particularly offences involving the supply of drugs such as MDMA, are serious. That is reflected by the maximum sentences provided under the legislation. As noted above, the Applicant’s offending, as reflected by the sentences imposed by the court, falls at the lower end of the scale of seriousness for such offences.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))
Paragraph 13.1.2 of Direction 79 provides:
(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).
The Tribunal in CZCV and Minister for Home Affairs[32] (CZCV) at [56] summarised the task for the Tribunal as follows:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
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.
[32] [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection,[33] Moshinsky J stated, at [68]:
...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.
[33] [2016] FCA 1181.
I agree with and adopt the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (13.1.2(1)(a))
The nature of the harm to individuals and to the community if the Applicant were to deal in drugs again, are obvious and serious. As Stevenson DCJ noted in sentencing the Applicant:
The reason why this type of offending is so serious is because of the incalculable harm that it does to innocent people in the community, not only those who become addicted to the use of prohibited drugs but also those who are the victims of crimes committed by users in order to obtain funds and property to fuel their addiction.
The Respondent’s SFIC cited the Australian Institute of Health and Welfare web report on alcohol, tobacco & other drugs (last updated 23 April 2020) which relevantly summarises the short and long-term effects associated with the use of methamphetamine and other stimulants as follows:
The Respondent’s SFIC also referred to a number of tribunal decisions that have addressed the issue of the nature of the harm that is caused to the community by illicit drugs,
including Trang and Minister for Home Affairs[34] at [65]-[67] and VPKY and Minister for Home Affairs[35] [18]-[20]. I also note the comments made in McCarthy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[36] (McCarthy) at [48] and to the case of Jacobs and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[37] cited therein, wherein the following comments of Lonsdale DCJ were noted and adopted:
It is the experience of these courts that illicit drugs cause or materially contribute to a very significant proportion of the criminal offences committed in this State.
And that is either as a result of users acting under the influence, or because of their need to finance or secure a supply of drugs. There are often strong financial incentives to deal in prohibited drugs. Further, significant public resources are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs.
[34] [2019] AATA 4087.
[35] [2019] AATA 352.
[36] [2020] AATA 2939.
[37] [2020] AATA 1524.
I again adopt her Honour’s comments.
I also agree with and adopt the following observations of Member Eteuati in Lansdowne and Minister for Home Affairs[38]:
[38] [2019] AATA 2448.
107.The deleterious effects of drug trafficking on the community are well-known and often stated. Australia’s National Drug Strategy 2017-2026, referred to by the Respondent, notes that:
“Over the last five years there has been an increase in the availability and purity of methamphetamine... As a consequence, states and territories are reporting an increase in the harms associated with its use including increased presentations to drug treatment services, ambulance attendances and presentations/admissions to Australian public hospitals.”
108.In Ngo v The Queen [2017] WASCA 3, the Court of Appeal of the Supreme Court of Western Australia (Buss P with whom Mazza JA agreed) stated that the victim of trafficking or attempted trafficking in illicit drugs was the Australian community generally and that:
“The illicit drug trade is a scourge. It inflicts very significant damage on the people who consume the drugs. Also, the deleterious effects of illicit drug consumption extend to the families, friends and associates of the consumers and society generally.”
109.The Respondent in his written submissions referred to the Tribunal’s decision in SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020 (“SCJD”). In SCJD, Senior Member Cameron stated the following in relation to the harmful effects of drug trafficking at [80] to [83]:
“The seriousness of drug trafficking is well known. It has been commented on by several of the trial judges before whom the Applicant has come.
The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
There is also the organised crime element involved in drug trafficking.
The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.”The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (13.1.2(1)(b))
The Applicant’s SFIC contends that the Applicant’s conduct while in custody has been exemplary. This, the Applicant contends at paragraph 55 of his SFIC, is demonstrated through the prison reports which show that the Applicant:[39]
[39] R3, 306-348.
a.on 5 January 2018 was commended for his honesty in reporting an overpayment to his phone account that should have been given to another prisoner of the same family name (RB 306);
b.on 19 July 2017 was reported as “doing very good job” as a peer support prisoner with “No hesitation to help any prisoners, happy to assist officers in dealing with Vietnamese prisoners at any time. Always helps to orientate the prisoners with language barrier as an interpreter.”
c.on 4 May 2017 successfully completed the Hakea Cognitive Brief Intervention Program;
d.on 6 April 2017 completed the 2 day Lifeskills program;
e.on 6 January 2017 was commended for “prisoner work ethic is of high standard. Very polite to all staff members”;
f.on 10 November 2017 was commended for his interpreting service for “PSO (Prison Support Officer) English to gain the information.”;
g.on 10 November 2017, as a peer support team member, informed the Prison Support Officer that a prisoner he had just had contact with was suicidal following which the prisoner was relocated to an observation cell;
h.in a Management and Placement Plan approved on 23 April 2018 was recommended as “suited to a minimum placement due to excellent prison conduct and non-violent nature of offending and short time until a parole decision.”;
i.in a Parole Review Report created on 23 April 2018 was reported upon by unit staff in these words at para. 7.5: “Mr Nguyen’s behaviour and attitude is good and he is not considered a management problem. He maintains a clean cell and good level of personal hygiene. Mr Nguyen has no recorded negative incidents during his current period of imprisonment. He appears to mix well and help other prisoners were possible in his role as a Peer Support prisoner. He is respectful and polite to staff members.”;
j.was approved for parole on 28 May 2018 by the Prisoners Review Board for reasons that included: “No prior criminal history. Participation in voluntary courses demonstrates a motivation and willingness to address offending behaviour.”
(Exhibit references omitted.)
The Applicant also points to the decision of the Prisoner’s Review Board (PRB) and the order made by the PRB on 28 May 2018.[40] The reasons given by the POB for granting parole were:
[40] R3, 346-347.
In making this decision the Board took into account the release considerations in
s.5A of the Sentence Administration Act 2003 (WA), giving the paramount consideration to the safety of the community. The Board decided that your release would not present an unacceptable risk to the safety of the community due to;
1. The salutary impact of the first term of your imprisonment and your first opportunity for parole supervision.
2. Participation in voluntary courses demonstrates a motivation and a willingness to address offending behaviour.
3. The parole plan includes confirmed suitable accommodation and support form family.
4. The conditions of parole will further reduce the risk to the safety of the community.
5. No prior criminal history.
The PRB order overrode the standard obligations under s 29 of the Sentence Administration Act2003 (WA) and imposed the following requirements:
1. You must not commit an offence.
2. You must not use or be in possession of any illicit drug including cannabis.
3. You must not leave or remain out of the State of Western Australia without first obtaining written permission form the Board.
The PRB order then imposed what it described as “Additional Requirements” under s 30 of the Sentence Administration Act 2003 (WA) as follows:
1. Attend random urinalysis for all illicit substances as directed by the Community Corrections Officer and provide a valid sample.
2. Not to change address without the prior permission of the Community Corrections Officer.
3. To immediately advise the Prisoners Review Board in writing, details of your intended date of return (or release) and an Australian address, if you were required to leave under the Migration Act and you subsequently return to Australia before your sentence expiry date (or you challenge your removal and are successful in the revocation of the cancellation of your visa).
4. To attend programmes and counselling as directed.
The Applicant points out, citing [90]-[100] of the appeal decision, that the appeal to the Federal Court was successful because the Court found that the tribunal in its original decision had overlooked the PRB decision to grant parole and found that failure was a material error.
I take into consideration the fact that the PRB granted the Applicant parole. I do so, however, with the caveat noted in previous matters where the PRB’s decision to grant parole has been raised as a matter to be taken into account. As observed in McCarthy:
63.The Tribunal notes that the Applicant was granted parole. The Parole Order identified in the reasons for decision section that the Applicant had undertaken rehabilitation programs, that he had successfully completed parole previously and that “the conditions of parole will further reduce the risk to the safety of the community”. The Parole Board concluded that the Applicant did not pose an unacceptable risk to the safety of the community. It imposed reporting and notification conditions on the parole.
64.This Tribunal noted in Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256 that:
75. While the Tribunal acknowledges that parole was granted, it also notes that the Parole Board is assessing risk for the period from the date the prisoner is released on parole until the expiry of the maximum sentence. The parole period is a period of supervision during which the prisoner, depending on the terms, will be supervised by, and report regularly to a community corrections officer who will monitor the prisoner’s compliance with the parole conditions imposed by the Board. That does not mean that the Parole Board is of the view that the Applicant is not a risk to the community, not even for the period of his parole. The import of the parole order is that the Parole Board was of the view that, with monitoring and supervision during the period of parole, the Applicant did not pose an unacceptable risk to the safety of the community.
76. The comforts that the Parole Board have in making an order for parole are that, firstly, it can impose conditions and, secondly, if the prisoner re-offends or breaches the conditions imposed, he will be taken back into custody and out of the community. This Tribunal does not have the benefit of those comforts when assessing whether an Applicant is an acceptable risk. Once an applicant’s visa is restored, the applicant is released free and unconditionally back into the community.
77. The Tribunal also notes and agrees with Senior Member Dr Evans-Bonner’s comment in Varley and Minister for Home Affairs [2019] AATA 376 at [110] that:
The Tribunal cannot, however, defer to the opinion of the PRB to the extent that the Tribunal fetters its own discretion. The Tribunal must undertake its own independent consideration of the Applicant’s likelihood of reoffending, based on the merits of the Applicant’s application before the Tribunal and the submissions and evidence before the Tribunal.
(Footnotes omitted.)
The same comments apply in the present case. The conclusion reached by the PRB that the Applicant’s “release would not present an unacceptable risk to the safety of the community”, was made under the criteria applicable to their function under the Sentence Administration Act 2003 (WA), and subject to the imposition of the conditions and additional requirements set out in the order. It is a matter of speculation whether the PRB would have reached the same conclusion absent being able to impose the conditions and requirements that it did. The decision that I have to make is different. If the cancellation of the Applicant’s visa were to be revoked, the Applicant would immediately be released into the community, unsupervised and unconditionally.
The Applicant also points to the fact that Jenkins J in the Supreme Court was prepared to grant the Applicant bail notwithstanding that the Applicant, at that time, still faced serious charges relating to the attempted possession/supply of five kilograms of methylamphetamine. As the Applicant notes, the conditions of the bail imposed by her Honour, which included the provision of a cash surety in the sum of $80,000,
were “onerous”. In fact, her Honour described the conditions as “extremely onerous”.[41]
Her Honour also said that she was “…satisfied that if the applicant is not kept in custody he may commit an offence”.[42] In concluding that she would grant bail, her Honour said:[43]
These conditions will be extremely onerous as I think that it is only such onerous conditions that could sufficiently remove the possibilities of him in particular failing to appear in court and committing an offence while on bail.
[41] R3, 117.
[42] R3, 116.
[43] R3, 117.
As events turned out, the conditions were too onerous for the Applicant, or more to the point, his mother who was unable to provide the cash surety. Again, while I note the fact that Jenkins J was prepared to grant the Applicant bail on conditions that she herself described as “extremely onerous”,[44] the same observations in relation to the PRB’s decision to grant parole apply to her Honour’s decision to grant the Applicant bail. Her Honour’s observation as to the necessity to impose “extremely onerous” conditions to “sufficiently remove the possibility” of the Applicant reoffending, underscores the difference between the exercise undertaken by courts in granting bail and, to a similar degree, the PRB in granting parole, to the exercise that I have to undertake in assessing the risk that the Applicant poses to the Australian community.
[44] R3, 117.
The Applicant provided a report dated 15 May 2018 by clinical psychologist Mercurio Cicchini.[45] The Applicant submits that:[46]
The psychologist Mercurio Cicchini has assessed the applicant as follows in a report dated 15 May 2018: “In my opinion, notwithstanding the very serious nature of
Mr Nguyen’s offences that were penalised via imprisonment, his background and conduct whilst in custody are suggestive of his having favourable prospects of rehabilitation and returning to a productive life in the community. Further, it was stated that the applicant “…does not possess an antisocial disposition” and “…believes that his abstinence and imprisonment has helped him overcome any interest in drugs.”
(References to exhibits omitted.)
[45] R3, 207-217.
[46] Applicant’s SFIC para. 59.
In his concluding remarks in his report Mr Cicchini said:[47]
The circumstances of this young man’s digression into criminal activity described in this report indicate that Mr Nguyen has good prospects of resuming a law-abiding life by pursuing TAFE studies and furthering his career in the hospitality industry as a chef, with the support of his mother. The risk of reoffending in a similar way in the future is low.
[47] R3, 216.
The Respondent’s position on the report of Mr Cicchini is that, while his report opined as set out above:
…Mr Cicchini also gave evidence before the previously constituted Tribunal.
He appears to be of the view that the applicant’s risk of re-offending in a similar manner is low, but that without appropriate therapeutic intervention there is a significant likelihood of a relapse into drug abuse (which had a “concomitant” relationship with the offending).
(Footnotes omitted.)
Mr Cicchini did not give evidence at the second hearing. The thrust of Mr Cicchini’s report and his evidence at the first hearing was not as definite as asserted by the Respondent above. A fairer summary of the thrust of Mr Cicchini’s report and his evidence would be that he considered that it would be desirable for the Applicant to receive further individual treatment to assist in preventing a relapse into offending. His evidence at the first hearing was:
MR GERRARD: And just to clarify, that’s a low risk of reoffending a low risk of relapsing into drug use?
MR CICCHINI: No, reoffending - I think I was actually asked to comment on reoffending, so the actual - it’s a separate question you’ve just mentioned, and I can answer that. The question that was asked was about the risk of reoffending because he was convicted for offending, for being a substance user.
…
MR GERRARD: Now, is it your opinion that the substance use was a significant component of his offending?
MR CICCHINI: No. … I think it was a concomitant - it was a by-product, it was associated with it but it wasn’t the case of it.
…
MR GERRARD: And you then go on to - you put forward an opinion, a sort of cautionary opinion, that whilst abstinence is important, it may not be a sufficient condition, and you discuss that a little bit more in depth, and you conclude that it would be desirable for follow up, individual psychological counselling to take place?
MR CICCHINI: That was my suggestion, yes.
MR GERRARD: Yes. And that remains your opinion?
MR CICCHINI: Well, to be quite honest I don’t know what has transpired since that date, because - - -
…
MR GERRARD: That you have found that this would be ordinarily, if I can put it that way, a desirable - - -?
MR CICCHINI: Yes.
MR GERRARD: And that ordinarily you wouldn’t expect a period of abstinence to be sufficient?
MR CICCHINI: No. I’m saying that it’s a good beginning, but it would be best supplemente by a follow up because people do have vulnerabilities and when they do have vulnerabilities it is possible to regress, so that is sort of, in a generic way, I think that’s a fact and - -
MR GERRARD: But it’s hardly a controversial view, is it?
MR CICCHINI: No, no, but as a precaution I actually recommended it at that point and I would recommend to any other person in a similar stage that to sort of reinforce the commitment made and the abstinence undertaken during a period of incarceration. It would be best if it was followed up with some after care.
MR GERRARD: Well, I have to say it’s a little bit more strongly put in your report. I think you said that it may not be a sufficient condition?
MR CICCHINI: Therefore, I say for that reason, follow up by individual psychological counselling or participation in a suitably supportive group program in the community is desirable.
…
MR GERRARD: And you said that those activities can assist an offender in moving forward in their rehabilitation but again you say however in your opinion:
Individuals who have had exposure to negative life events and encounter these (indistinct) may require further more in depth individual assistance to prevent relapse.
MR CICCHINI: Yes.
MR GERRARD: And it’s basically - well, can I put it to you that that is reinforcing the earlier commentary made about counselling being desirable?
MR CICCHINI: Yes. Well, it’s the same theme, yes.
MR GERRARD: So would it be fair to say then that simply because a person has been abstinent from drugs whilst incarcerated and have had access to prison-based courses, that may not be sufficient moving forward?
MR CICCHINI: Yes, but I have no evidence that that is actually the case.
…
MR CICCHINI: … What I’m saying in the scheme of things it’s desirable - and so in other words I have no evidence that this particular individual has not resolved their drug problem or will relapse. I have no evidence. I just - in the balance of probabilities I think it is a precautionary measure to add a little bit extra.
I do not accept the Respondent’s assertion that Mr Cicchini’s evidence was that “without appropriate therapeutic intervention there is a significant likelihood of a relapse into drug abuse”. Mr Cicchini’s evidence was not to that effect. The consistent purport of
Mr Cicchini’s report and his evidence at the first hearing was to the effect of the final paragraph of his evidence quoted above.
The Applicant has undertaken a number of courses while in prison.[48] One such course was the Cognitive Brief Intervention course. The program report relating to that course was positive and commented that:[49]
In the session on Relapse Prevention the participant demonstrated a good understanding of control and completed a relapse prevention plan with a focus on addressing relationship and lifestyle issues.
[48] R3, 223-225.
[49] R3, 220-221.
The Adult Community Corrections Parole Assessment report under the heading Behaviour in prison noted:[50]
The Total Offender Management Solution (TOMS) database indicates that
Mr Nguyen has incurred no negative reports during his current term of imprisonment. He is employed as a full-time peer support worker and has received positive feedback from his Supervisors. He is not considered a management problem.
[50] R3, 343.
That same report under the heading Programmatic intervention reported:[51]
Mr Nguyen has not been assessed for inclusion in any treatment programs. He has engaged in voluntary programs and has complete the Cognitive Brief Intervention (CBI) Program whilst on remand in Hakea Prison. The Program Completion Report dated 10/05/2017 detailed satisfactory treatment gains. Mr Nguyen informed that he has also completed a voluntary drug and alcohol course. As Mr Nguyen has not fully explored his substance use, this may remain an area of risk. At interview he expressed a willingness to engage in counselling upon release… Any potential relapse to substance use may be monitored through urinalysis testing.
[51] R3, 343.
The Applicant’s evidence was that his wife, sister and mother would provide support to assist in the prevention of a return to crime. The statements that they provided all asserted their support in keeping the Applicant on the right path if he were allowed to stay.
I accept that the Applicant’s family is genuine when they pledge that support. It would be fair to observe that the Applicant’s sister and his wife were aware of his and his brother-in-law’s criminal activities and were not successful in stopping his involvement in those activities in the past. However, I am of the view that through a combination of incarceration, both the Applicant’s and his brother-in-law’s, and through choice on the part of the Applicant to sever his ties with his brother-in-law, the primary influencer in the Applicant’s previous criminal behaviour will not be present if the Applicant were to remain in Australia.
His brother-in-law’s influence seems to have been built on the fact that he was an older male member of the family, and the Applicant’s relative youth, around 20-21 years old at the time.[52] The Applicant’s criminal activities all seemed to have been driven by and were at the direction of his brother-in-law. As Stevenson DCJ noted, while the Applicant was an “active participant” and a “trusted front man” in the operation, he was primarily a cog, albeit an important cog (see [44] above). I am satisfied that the Applicant will not be subject to that sort of influence in the future.
[52] Paragraph 12 of the Applicant’s statutory declaration 24 January 2019 (R3, 27).
While the two indictable offences of which the Applicant was convicted in March 2018 were serious, they were at the lower end of seriousness for those particular offences and, together with the possession of heroin conviction, represent the Applicant’s only criminal convictions. His offending was over a very short period and the offences were committed when he was young and clearly lacked worldly experience or sufficient strength to resist the influence of his much older brother-in-law. His offences were, in my view, the result of his naivety and stupidity under the influence of an older family member rather than indicative of an inherent predisposition to crime.
I assess the likelihood of the Applicant engaging in further criminal or other serious conduct as low.
While the harm caused by drug dealing is invariably serious, the risk of the Applicant engaging in the criminal behaviour as he has in the past is sufficiently low to make the risk to the community not unacceptable (CZCV at [56]). This first primary consideration weighs in favour of revocation of the cancellation of the visa.
Second primary consideration: Best interests of minor children in Australia affected by the decision (13(2)b))
Paragraph 13.2 of Direction 79 provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a. The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b. The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c. The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d. The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e. Whether there are other persons who already fulfil a parental role in relation to the child;
f. Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g. Evidence that the 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.
The Applicant has no children. Two children are identified in the Applicant’s SFIC as being relevant to this consideration. They are the two children of his sister who are aged four and six. In her statutory declaration of 22 May 2018,[53] the Applicant’s sister says that she and her children had been living with the Applicant and his wife “instead of my husband due to my husband’s aggressive nature and illegal business”. She says that during the time that she lived with the Applicant and his wife leading up to the Applicant’s incarceration he “…treated my children like his own and care[d] for them dearly.” Her evidence was that since his incarceration she has visited her brother with her children weekly.
[53] R3, 204.
The Respondent points to the fact that the children would have had minimal contact with the Applicant before his incarceration (the younger of the two children having been born only a matter of months before the Applicant’s arrest and incarceration) and to the fact that one of the children was in the car in which drugs were being transported by the Applicant and his brother-in-law (see [47] above) on the day of the Applicant’s arrest. The Applicant’s evidence at the hearing was that, in fact, both of his sister’s children were in the car.[54]
[54] Transcript at 46.
Considering the factors identified in Direction 79, there has been a long period of absence from the children’s lives with contact since mid-2016 being limited to prison visits.
The Applicant’s role is not, and appears not to have been, in the nature of a parenting role. Apart from the statements that the children are presently without a father figure in the household due to their father’s incarceration, and the fact that the children and their mother lived with the Applicant and his wife for a short time before his arrest, there is little evidence upon which I can make any meaningful assessment of the likelihood of the Applicant playing a positive role in the children’s lives if he were to stay in Australia.
The Applicant did not make extensive submissions on the role that he played or would play in these children’s lives if he were allowed to stay. In his statutory declaration of
24 January 2019[55] the Applicant says that he wished he was “there to help and support them” (being a reference to his mother, sister and her children) and that with the incarceration of his brother-in-law his sister and her children have been living without a man in the house and that as a result his sister and the children had suffered “mentally and emotionally”. His sister’s evidence was to the same effect.[56]
[55] R3, 27.
[56] Paragraph 6 of her statutory declaration of 22 May 2018.
The Respondent contends that, if it is the Tribunal’s view that the best interests of the children are served by a revocation of the cancellation of the visa, then “less weight should be afforded to this consideration having regard to the factors set out in paragraph 13.2(4) of Direction 79”. I agree with the Respondent’s assessment. While the consideration of the best interests of the minor children weighs in favour of the revocation of the cancellation of the visa, it is appropriate to give this consideration only minor weight.
Third primary consideration: Expectations of the Australian community (13(2)(c))
Paragraph 13.3 of Direction 79 provides:
(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 that 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 proper construction of paragraph 13.3 of Direction 79 has been the subject of much judicial analysis. The starting point for most of the recent analysis was Justice Mortimer’s decision in YNQY v Minister for Immigration and Border Protection[57] (YNQY). The two approaches that emerged following her Honour’s decision in YNQY were the so-called broad approach of the type taken by Griffiths J in DKXY v Minister for Home Affairs[58] (DKXY) and the so-called narrow approach of the type taken by Perry J in FYBR v Minister for Home Affairs[59] (FYBR).
[57] [2017] FCA 1466.
[58] [2019] FCA 495.
[59] [2019] FCA 500.
That debate as to which approach is correct appears to have been resolved by the
Full Court of the Federal Court in FYBR v Minister for Home Affairs[60] (FYBR (FC)).
The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach, that is, the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing
“an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[61] (Rehman).
[60] [2019] FCAFC 185
[61] [2019] AATA 4424.
Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the
High Court (Kiefel CJ and Keane J) refused special leave.[62]
[62] FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56.
Having reviewed the above and other relevant authorities, Member Buford in Rheman said:
173.It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa.
Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
174.However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
The Applicant has committed two relatively serious crimes. The Australian community would expect that the Applicant should not hold a visa, that is, that the cancellation of his visa should not be revoked. However, the Applicant’s record is not a particularly bad one.
His offending is limited, in effect, to a single enterprise which he undertook under the influence of a stronger, older member of his family. He was at the time of his offending
21 years of age and, he says, immature and up to that time had led a crime-free and apparently productive life. In these circumstances, while this consideration must weigh against the revocation of the cancellation of the visa, it is my assessment that this consideration should be given only minor weight.
OTHER CONSIDERATIONS
Paragraph 14 of Direction 79 provides:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations 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;
e) Extent of impediments if removed.
International non-refoulement obligations (14(1)(a))
The Applicant does not assert that any non-refoulement issues arise in his case.
On the material that has been put before me, I am satisfied that this is not a relevant consideration.Strength, nature and duration of ties (14(1)(b))
Paragraph 14.2 of Direction 79 is as follows:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a. How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b. The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, 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 Applicant arrived in Australia in 2009 as a 14-year old. While he arrived as a child,
it could not be said that he was a “young child”. He was, however, still a child when he arrived. His evidence was that when he came to Australia he could not speak English.
He attended an English language school in Sydney for three years and then attended a public high school completing year 12 in 2014. He then completed a TAFE hospitality course after which he worked as a barista. While studying at TAFE he met his wife who was studying business and they married in December 2014. In March 2015 he and his wife moved to Perth to assist his sister in managing her nail business while she went on maternity leave.
The Respondent’s SFIC submits that the Applicant became involved in his brother-in-law’s drug dealing in September 2014 citing the comments of Jenkins J[63] in the application to the Supreme Court for bail. While there was mention by her Honour of an assertion being made by the State that parcels containing drugs had been picked up in New South Wales by someone using the name Dat as early as September 2014, she referred to the Applicant’s involvement starting “from at least March 2015”. In cross-examination counsel for the Respondent put the following to the Applicant:
MR PAPALIA: Your offending commenced from about March 2015 until you were caught by police in June 2016, isn’t that the case?
APPLICANT: Yes.
MR PAPALIA: By June 2016 you had become addicted to drugs, hadn’t you?
APPLICANT: Yes.
[63] R3, 109.
Based on the above, I will take the Applicant’s involvement in crime to have started around March 2015. While in some contexts six years might not be considered to be a long time, it could not be said that the Applicant began offending soon after arriving in Australia (paragraph 14.2(1)(a)(i)). It would also be fair to say that up to the commencement of his involvement in the criminal enterprise with his brother-in-law in March 2015, the Applicant had contributed to the Australian community, firstly through his studies, and then his employment as a barista in New South Wales for around 10 months and then in his sister’s nail salon in Perth.
The Applicant’s mother and his sister and her children live in Australia. The Applicant’s mother, who is an Australian citizen[64] has been undergoing personal difficulties arising out of the break-down of her relationship with her former partner, as documented in a psychologist assessment report dated 6 November 2018 by Flora Truong of Healthy Minds Psychology.[65] She has been diagnosed with a Major Depressive Disorder, and says that she needs her son’s support and care (statutory declaration of 24 January 2019, paragraphs 10-12).[66]
[64] R3, 126.
[65] R3, 34-46.
[66] R3, 30-31.
The Applicant also contends that he has close ties with his only sibling, his older sister who is also an Australian citizen,[67] and her children who are Australian citizens. In the absence of the children’s father and any other male family figure, the Applicant contends that he has an important role in the extended family.
[67] R3, 125.
The Applicant’s wife is not an Australian citizen but is awaiting a decision in the second stage of her application for a partner visa sponsored by the Applicant. She is also a young adult who has lived in Australia for 5 years and undertaken education and has been employed in Australia. The Applicant says that they plan to build their lives together in Australia. They plan to have at least 2 children and wish for them to be brought up and educated in Australia rather than Vietnam.[68]
[68] Wife’s statutory declaration dated 24 January 2019 at paragraphs 8 and 9 (R3, 47-48).
The Applicant in his statutory declaration dated 24 January 2019 stated:
16.During my incarceration, I thought of nothing but how my family were coping.
I was scared for my wife being alone and working to support herself. I was terrified for my mother’s health being worsened. I was worried for my sister and her two children, that Truong was arrested and taken away from them.
17.I tried to make my time in prison and in the detention centre positive. I would help others with English-Vietnamese translations for the facility staff members and console with them.
18.I have heard from my mother, my wife and my sister of the changes they had gone through over the period of my incarceration. Events and changes that I wished I was there to help and support them through.
19.My wife was working 6 days per week to support herself and help my sister caring for her children. Now she is pursuing further studies to find a better career and to be able to build a bright future where we’d be able to raise our family – believing that I will be able to reunite with the family again.
20.My sister and her children have been living without a father in the house. The children have been mentally and emotionally affected not knowing where their father is, whilst my sister have been feeling insecure and scared without a man in the house.
21.My mother underwent mental health issues due to a family violence incident perpetrated by my step father. I felt helpless not being able to be there for my mother. I felt that I have become a failure as a son – not being there for my mother when she needed me most.
22.I can only pray for a second chance to be with my family again.
23.My mother has arranged a job for me to work for her friend should I be released and return home in Sydney with my wife. Should a possibility occur, I will do my best to re-build a better life together with my family.
The Respondent points out that the Applicant’s wife presently holds a Class UK Subclass 820 Partner (temporary) visa. She is therefore not a person of the kind described in paragraph 14.2(1)(b) of Direction No 79. The Respondent submits that while her circumstances are not irrelevant, they should be given less weight for this reason.
I agree.
The Respondent accepts[69] that a decision not to revoke the cancellation of the visa may have a detrimental impact on the Applicant’s relatives but submits that that they have generally demonstrated an ability to support themselves independently of the Applicant, including during his term of immediate imprisonment, and that while they may suffer some distress were the Applicant to be returned to Vietnam, they would be able to maintain their relationship with him from Australia and would be able to visit him in Vietnam.
[69] Respondent’s SFIC paragraph 69.
Paragraph 70 of the Respondent’s SFIC is:
The respondent concedes that the applicant has some ties to this country.
Those ties are likely to be reasonably strong, albeit not to the extent that they should outweigh the protection and expectations of the Australian community.
I accept that the Applicant’s social and family ties, particularly to his mother and to his sister are strong. It is clear from the statements that they have given that, while they might not be financially dependent on the Applicant, their emotional links are strong and that the Applicant’s removal from Australia would have a very significant emotional impact, particularly in the case of the Applicant’s mother whose mental condition is frail.
This consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa.
Impact on Australian business interests (14(1)(c))
Neither party made any submissions on this consideration and based on the material before me I find that this consideration has no application in the present matter.
Impact on victims (14(1)(d))
Paragraph 14.4 of Direction 79 provides:
(1)Impact of a decision not to revoke the cancellation on members of the 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.
Although this paragraph refers to paragraph 14(1)(d), which is, in its totality, “Impact on victims”, and notwithstanding that paragraph 14.4(1) is headed “Impact on victims”, paragraph 14.4(1) requires consideration of the impact of a decision not to revoke on members of the Australian community “including victims…and the family members of victims…”. The Applicant’s SFIC[70] appears to comment on the impact that the Applicant’s offending had on its victims which is not the relevant consideration. This paragraph requires consideration of the effect that a decision not to revoke the cancellation of the non-citizen’s visa would have on members of the community, including victims, not what the impact of his or her crimes was.
[70] Paragraph 76.
The Respondent’s SFIC[71] stated that this consideration does not arise in this case.
Again, the Respondent appears to have taken this consideration, as paragraph 14(1)(d) and the heading of paragraph 14.4(1) suggest, to require the impact on victims only to be considered. There is no evidence before the Tribunal as to what the impact would be of the Applicant being deported on any victim of the Applicant’s offending.
[71] Paragraph 72.
The text of paragraph 14.4(1), however, requires a broader consideration than looking at the impact of a decision on the victims only. Insofar as such a broader consideration is required, then one aspect of the possible impact of the Applicant being permitted to stay has been dealt with under the first primary consideration, the protection of the Australian community. Another aspect of the impact of the Applicant’s removal has been considered under the heading of strength, nature and duration of ties under paragraph 14(1)(b) and 14.2 of Direction 79. The individuals identified as being affected were the Applicant’s mother, his sister and her children and to a lesser extent his wife. The qualification in paragraph 14.2(1)(b) that the social or family links have to be with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia does not appear in the reference to “Australian community” in paragraph 14.4(1). Insofar as the impact on those members of the Australian community is to be considered, then I have done so under the above heading dealt with in [94]-[106]. Insofar as the consideration did not take into account the impact on the Applicant’s wife for the reason set out in [102], I take account of the impact on the Applicant’s wife under this consideration. Insofar as the impact of the Applicant’s deportation on his wife may not have been a consideration, or was a diminished consideration under paragraph 14.2, the addition of the consideration of the impact on the Applicant’s wife of his deportation under this paragraph 14.4(1) does not materially alter my decision.
Extent of impediments if removed (14(1)(e))
Paragraph 14.5(1) of Direction 79 provides:
(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.
The Applicant contends in paragraph 78 of his SFIC that “the main impediment to him returning to Vietnam is his lack of family and social connections there”. The Applicant’s SFIC says that he left Vietnam when he was 14, has no family and friends there and has lost contact with his father. The Applicant’s then lawyers, Jack Ta & Associates, made no representations to the Minister under this heading in the request for revocation of the cancellation of the visa.[72] In the hand-written Personal Circumstances Form the Applicant, in the impediments to return section, referred to the psychological report[73] and to the fact that he has no family or friends in Vietnam and would be separated from his family.[74]
[72] R3, 193.
[73] R3, 182.
[74] R3, 183.
The Applicant’s SFIC points to Mr Cicchini’s report, in particular to page 6 of that report[75] in which Mr Cicchini opines that “remaining in Australia is the only viable option for
Mr Nguyen”, citing in support of that statement, the Applicant’s education in Australia and the lack of family and other supports in Vietnam and the availability of those supports in Australia. It is not clear, at least to me, what Mr Cicchini meant by that statement as he does not say what, in his opinion, would happen to the Applicant if he were to be sent back to Vietnam. It is almost axiomatic in cases where non-citizens are seeking revocation of the cancellation of their visa that they consider that they would be better off staying in Australia. While it may well be the case that they would be better off staying in Australia, and that may even be a factor to be taken into account in determining whether there is “another reason why the original decision should be revoked” (s 501CA(4)(b)(ii)), it is not the consideration identified in paragraph 14.5(1) of Direction 79, noting that considerations identified in paragraph 14(1) are not exhaustive: “[t]hese considerations include (but are not limited to)”.[75] R3, 212.
Direction 79 requires me to consider impediments in the Applicant establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of Vietnam. This is to be assessed taking into account the Applicant’s age, health, language or cultural barriers and any social, medical and economic support that would be available to him. The fact that he might be better off in Australia is not to the point.
The Applicant also refers to Mr Cicchini’s opinion that it was desirable that the Applicant have “follow-up individual counselling or participation in a suitably supportive group program” and “professional counselling from a clinical psychologist within the Medicare system”.[76] Again, while that is a matter to be considered as it has been raised by the Applicant, it is not a matter that comes within the ambit of paragraph 14.5(1) of Direction 79. As was noted by Robertson J in ZGWQ v Minister for Home Affairs[77] at [11], it is not the role of the Tribunal to “…engage in a comparative analysis of the health and welfare system of [Vietnam] and that of Australia”.
[76] Page 8 of Mr Cicchini’s report; R3, 214.
[77] ZGWQ v Minister for Home Affairs [2019] FCA 1096.
There was, in any event, no evidence put forward by the Applicant as to what publicly available medical or financial support would or would not be available to the Applicant.
It is not the job of the Tribunal to make its own enquiries in this regard nor is it the responsibility of the Respondent to provide that sort of information. As was noted by
Jagot J in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Jokic[78] at [13]:
The Tribunal is not bound to obtain further information. It was free to determine the statutory question on the information that the first respondent had chosen to put before the decision-maker.
[78] [2020] FCA 1434.
The element of the Applicant’s submissions that does fall within the considerations raised by paragraph 14.5(1) is the social support, or lack thereof, in the Applicant establishing himself and maintaining basic living standards (paragraph 14.5(1)(c)). The Applicant’s written submissions were to the effect that he had no family contacts in Vietnam although he did spend a month in Vietnam in December 2011 to January 2012 (see [8] above).
A number of the assertions in the Applicant’s SFIC are questionable given his evidence at the hearing. He was cross-examined on the issue of the impediments to his returning to Vietnam as follows:
MR PAPALIA: So if you were to return to Vietnam, your wife would come with you, wouldn’t she?
APPLICANT: Yes, sir.
MR PAPALIA: And you would have a family network in Vietnam, wouldn’t you?
APPLICANT: Yes, sir.
MR PAPALIA: And your mother and your sister and your nieces could visit too, couldn’t they?
APPLICANT: Yes, sir.
MR PAPALIA: And you’ve got experience and qualifications that you gained in Australia, don’t you?
APPLICANT: Yes, sir.
MR PAPALIA: You’re 25 years of age and you have no health problems.
APPLICANT: That’s right.
MR PAPALIA: And you’re aware of Vietnamese culture, aren’t you?
APPLICANT: Yes, sir.
…
MR PAPALIA: So you’d be able to find employment in Vietnam, wouldn’t you?
APPLICANT: Yes, sir.
The Respondent states his position in his SFIC to be:
76.It is accepted that the applicant will experience significant emotional hardship being separated from his family in Australia, and re-establishing himself in Vietnam. The respondent acknowledges that there are likely to be some transitional difficulties in respect of access to services in Vietnam, but those impediments would by no means be insurmountable.
77.The respondent contends that this consideration should be afforded some weight in favour of revocation.
I agree with the Respondent. While there would be some impediments in the Applicant establishing himself because of his lack or current contacts and family in Vietnam, there is nothing to suggest that these would not be overcome. His frank and unequivocal answers in cross-examination in effect concede that to be the case. While the consideration weighs in favour of revocation, only minor weight should be given to this consideration.
The Weighing Exercise
Guidance is given by Direction 79 as to how the decision-maker should apply the primary and other considerations. Paragraphs 8(3), (4) and (5) of Direction 79 are relevant.
They provide:(3)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.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While these cases were generally looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The leading case in this regard is Suleiman v Minister for Immigration and Border Protection.[79] (See also the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ[80] and CZCV at [164]).
[79] [2018] FCA 594.
[80] [2018] FCAFC 217; (2018) 363 ALR 325.
Looking at the first primary consideration, the protection of the Australian community, the relevant consideration is whether the risk is an unacceptable one taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out above, I assess the likelihood of the Applicant offending as sufficiently low to make the risk to the community not unacceptable. The first primary consideration weighs in favour of revocation of the cancellation of the Applicant’s visa.
I find that the second primary consideration, the best interests of minor children,
in this case the Applicant’s sister’s two children, would be served by revocation of the cancellation of the Applicant’s visa. Only minor weight should be given to this consideration for the reasons set out above.The third primary consideration, the expectations of the Australian community,
weighs against the revocation of the cancellation of the Applicant’s visa. Again, however, for the reasons set out above, only minor weight should be given to this consideration.In relation to the “other considerations” identified in Direction 79, the consideration of strength, nature and duration of the ties that the Applicant has to Australia, in particular to his mother and sister and her children (paragraph 14(1)(b)), weighs in favour of the revocation of the cancellation of the visa. The impact on members of the Australian community (14.4), in particular the Applicant’s mother, noting the overlap between paragraphs 14.2 and 14.4, weighs in favour of revocation of the cancellation of the visa as does the consideration of the impediments that the Applicant would face if he is returned to Vietnam (14(1)(e)), although only minor weight can be given to the last consideration.
Having undertaken the weighing of the consideration for and against the revocation of the cancelation of the Applicant’s visa, I find that, while none of the considerations, either primary or other, is particularly strong, the considerations which weigh in favour of the revocation of the cancellation of the visa, outweigh the considerations which weigh against the revocation of the cancellation of the Applicant’s visa. Accordingly, I find that there is another reason why the original decision should be revoked.
DECISION
The decision of the delegate of the Respondent dated 12 December 2018 not to revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s Class BB Subclass 155 – Five Year Resident Return (permanent) visa is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.
I certify that the preceding 129 (one hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
....................................[SGD].................................
Associate
Dated: 16 October 2020
Date(s) of hearing: 4 September 2020 Counsel for the Applicant: Mr D Blades Solicitors for the Applicant: TQH Lawyers & Consultants Counsel for the Respondent: Mr J Papalia Solicitors for the Respondent: Australian Government Solicitor
15
32
0