Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 2664
•4 August 2020
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2664 (4 August 2020)
Division:GENERAL DIVISION
File Number: 2020/2891
Re:Quang Dung Nguyen
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date of decision: 4 August 2020
Place:Melbourne
The Tribunal decides to:
1.set aside the decision dated 13 May 2020 refusing to revoke the decision dated 19 June 2019 to cancel the applicant’s Class UF Subclass 309 Partner (Provisional) Visa; and
2.substitute a decision that the decision dated 19 June 2019 to cancel the applicant’s Class UF Subclass 309 Partner (Provisional) Visa is revoked.
……………[sgd]…………………
Deputy President S A Forgie
Catchwords – MIGRATION – mandatory visa cancellation due to substantial criminal record – refusal to revoke cancellation of revocation of cancellation of Class UF Subclass 309 Partner (Provisional) Visa – whether applicant unacceptable risk of reoffending – decision under review set aside
Legislation
Corporations Act 2001
Crimes Act 1900 (NSW); s 193A; s 193C
Migration Act 1958; s 501; s 501CA
Financial Transactions Reports Act 1988
Proceeds of Crime Act 1987
Proceeds of Crime Act 2002
Secondary materials
Direction No. 79
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Beckner v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 264; (1991) 30 FCR 49; 23 ALD 556; 13 AAR 433
Cheung v R [2001] HCA 67; 209 CLR 1; 185 ALR 111
DKXY v Minister for Home Affairs [2019] FCA 495
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Griffiths v R (1977) 137 CLR 293
FYBR v Minister for Home Affairs [2019] FCAFC 185
Kingswell v R [1985] HCA 72; (1985) 159 CLR 264
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313; 62 ALD 673
Minister for Immigration and Ethnic Affairs v Daniel [1981] FCA 212; (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135
Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441; 42 ALR 209; 4 ALD 575
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; 56 ALD 349
Oluwafemi v Minister for Home Affairs [2018] FCA 1389
R v Jerome and McMahon [1964] Qd R 595
R v Tonks [1963] VR 121
Re GQVS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 178
Re Mlinor and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771; 25 AAR 231
Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296; 69 AAR 8
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
REASONS FOR DECISION
Deputy President S A Forgie
Mr Nguyen was born in Vietnam in 1992 and is now 27 years of age. On 26 September 2017, he was granted a Class UF Subclass 309 Partner (Provisional) Visa (PPV). His PPV was mandatorily cancelled on 19 June 2019 under s 501(3A) of the Migration Act 1958 (Migration Act). He was advised of that by letter dated 15 July 2019. Mr Nguyen sought revocation of the cancellation of his PPV under s 501CA(4) on 11 August 2019. He accepts that he does not pass the character test under s 501(6)(a) because he has a substantial criminal record within the meaning of s 501(7)(c). His substantial criminal record arises from the fact that he was sentenced to a 13 month term of imprisonment on being convicted on 8 April 2019 of dealing with property suspected of being the proceeds of crime contrary to s 193C(1) of the Crimes Act 1900 (NSW). On appeal to the Parramatta District Court, his sentence was confirmed. A delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) refused Mr Nguyen’s request for revocation in a decision dated 13 May 2020. Mr Nguyen has now applied for review of the Minister’s decision. I have decided to revoke the cancellation of his PPV
LEGISLATIVE BACKGROUND
In this passage of my reasons, I will set out the provisions of the Migration Act which provide the legislative basis on which Mr Nguyen’s PPV has been cancelled by operation of the law set out in the Migration Act. They also provide the basis on which I must consider his request for revocation of that decision.
Cancellation of Visa under s 501(3A)
Section 501(3A) of the Migration 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.”
The word “imprisonment includes any form of punitive detention in a facility or institution.”[1]
[1] Migration Act; s 501(12)
Section 501(6) sets out eleven sets of circumstances in which a person does not pass the character test but only those specified in s 501(6)(a) are relevant in this case for the purposes of s 501(3A). The relevant circumstance is that the person has a substantial criminal record as defined by s 501(7). Section 501(7) sets out six sets of circumstances in which a person is taken to have a substantial criminal record. Only the first three are relevant for the purposes of s 501(3A) and, in this case, s 501(7)(c) is relevant. It provides that a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more”.
Mr Nguyen was sentenced to a term of imprisonment of more than 12 months when he was convicted in the Local Court of New South Wales at Burwood. That means that he does not pass the character test as defined in s 501 because he has a “substantial criminal record” as defined by s 501(7)(c). As Mr Nguyen was also serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of, in this case, the State of New South Wales, the Minister was also required to cancel his PPV under s 501(3A)(b).
Section 501CA is relevant if the Minister has made a decision, known as the “original decision”, under s 501(3A) to cancel a visa that has previously been granted to a person.[2] Section 501CA(4) provides that:
“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.”
[2] Migration Act; s 501CA(1)
In the circumstances of this case, Mr Nguyen cannot rely on the provisions of s 501CA(4)(b)(i) as he cannot pass the character test in s 501. The only relevant provision is that in s 501CA(4)(b)(ii), which requires me to consider whether “… there is another reason why the original decision should be revoked.” The way in which I am required to consider this issue was addressed by North ACJ in Gaspar v Minister for Immigration and Border Protection:[3]
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …”[4]
[3] [2016] FCA 1166
[4] [2016] FCA 1166 at [38] and cited with approval in Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]-[32] per Collier J with whom Logan and Murphy JJ agreed.
Under s 499 of the Migration Act, the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[5] Those directions must not be inconsistent with the Act or the Regulations made under it.[6] The person or body to whom the directions are given must comply with them.[7]
[5] Migration Act; s 499(1)
[6] Migration Act; s 499(2)
[7] Migration Act; s 499(2A)
The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501CA. It is known as “Direction No. 79” and applies to the decision made in relation to a visa of the sort held by Mr Nguyen. A person or body, including the Tribunal, must comply with any direction made under s 499.[8] I will come back to Direction No. 79 and to the particular considerations which it sets out and to which I must have regard.
BACKGROUND
[8] Migration Act; s 499(2A)
Personal circumstances
On the basis of the evidentiary material, I find that Mr Nguyen’s mother worked in a market selling clothing and breakfasts. His father worked in a variety of roles but was mostly self-employed repairing automobiles and working in coalmines. His only brother drowned in a pond 2010. That severely disrupted the family functioning and it did not recover from the grief. His parents divorced in 2014 and his father re-partnered and fathered another son.
Mr Nguyen attended school and, in 2010, began his studies at the Hanoi University in mining engineering and business management. He graduated with Bachelor degrees in both disciplines. As a student, Mr Nguyen worked in a variety of jobs, including as a forklift driver. He obtained a position as an engineer in Vietnam but, after finding that he did not like it, changed to business management.
There was some lack of clarity both in the written material and in the oral evidence as to when he met Ms Tran. Dr Christopher Lennings OAM, Psychologist, who prepared a pre-sentence report, reported that Mr Nguyen met Ms Tran, who was to become his wife, in 2012 but that date is against the weight of evidence. Mr Nguyen’s evidence, which is consistent with that of Ms Tran, her mother and the marriage certificate in the material, is that they first met in 2014. His father was a good friend of Ms Tran’s mother. Ms Tran was born in 2001. Although Ms Tran and her mother had left Vietnam and moved to Australia, they would travel to Vietnam frequently for religious observances. Mr Nguyen thought that his mother and Ms Tran’s mother “conspired” to facilitate their marriage. That is possible given that Ms Tran’s maternal grandfather, Mr Huu Van Do, gave evidence that the two families had lived nearby to each other in Vietnam and Mr Nguyen had frequently visited them there. They knew him well. Ms Tran’s mother, Ms Thao Van Do, was also very familiar with Mr Nguyen’s childhood and of the major events in it including the death of his brother and his parents’ divorce.
After they met, I find, Mr Nguyen asked Ms Tran’s parents for her contact details as he thought that she was a “lovely lady”. They maintained contact with each other over social media such as Facebook and Viber until Ms Tran returned to Vietnam in 2016. He said that they talked about their emotions, affairs, circumstances and life in their respective countries. During those exchanges, Mr Nguyen and Ms Tran developed emotions for each other and he could see their love for each other growing. When Ms Tran returned to Vietnam in 2016 with her mother and step-father, his father and aunt went to the airport to pick them up. Mr Nguyen had just completed his studies and he had a lot more time than before. He took her sightseeing and their feelings developed further. Mr Nguyen also took Ms Tran’s mother to Buddhist temples and helped her prepare religious offerings so that she could fulfil her religious practices. They visited many temples.
Mr Nguyen realised that he was in love with Ms Tran and asked her to be his girlfriend. She said that she needed more time. He told her that they were similar and should be together. One day they both went to a monastery and asked for spiritual guidance from the higher beings. They were shown that they were on the same spiritual path. That was why Ms Tran agreed to marry him. They did not marry at that time and Ms Tran returned to Australia. They both felt that they did not wish to live without each other and he asked her to marry him over the telephone. She accepted and, a month later, she returned to Vietnam. Their marriage was registered in July 2016 but had two earlier formal ceremonies in May 2016. The first wedding ceremony was held at the home of Ms Tran’s family in Vietnam on 12 May 2016. A few days later, the second wedding ceremony was held at the home of Mr Nuygen’s family. Ms Tran’s Australian-based family attended the ceremonies. Her family also travelled to Thailand with them for their honeymoon.
Ms Tran returned to Australia after the wedding but she flew back to Vietnam after two weeks. She remained in Vietnam until August or September 2016 but then returned to Australia as she had her studies to return to.
Mr Nguyen applied for a visa to travel to and remain in Australia in December 2016. Ms Tran was his sponsor and she explained that she had to wait until December because she had to complete the paperwork. I find that, in June 2017, Ms Tran became an Australian citizen.[9] Mr Nguyen was granted a PPV and arrived in Australia on 31 October 2017.
[9] G documents; G1 at 135
Mr Nguyen and Ms Tran lived with her mother and step-father after he arrived in Australia. He worked with Ms Nguyen’s step-father, Mr Wayne Hodson, at a pool supplies shop, which also operates online. Mr Nguyen worked as a packer as well as lifting and storing heavy items such as bags of sand. Although his English was limited, Mr Nguyen had some interaction with the customers. Mr Hodson regarded him as a good worker and a quick learner and not a person who rested on his laurels. At the same time, Mr Nguyen continued the business he had begun in Vietnam. It was an online business selling food and vitamin products to persons in Vietnam. I find that he would source the products that they wanted from Australian suppliers and send them to Vietnam. The price they paid was less than his Vietnamese clients would have paid in Vietnam. Some of his clients were Australian based and wanting products sent to Vietnam. They paid him in Australia. His Vietnamese based clients paid the money to his two assistants based in Vietnam. He kept the money in Vietnam so that his parents in law could use it when they visited Vietnam. I find that Mr Nguyen earned between $300 and $500 each week from the business.
Mr Nguyen worked with Mr Hodson at an online pool supply company for approximately two months but Ms Tran became very stressed. She had been studying for a Master of Nursing in 2017 but had failed a core topic in the course. Mr Nguyen’s understanding at the time was that she wanted to move away from Melbourne because she had become stressed. For himself, he thought that it was a good idea because he wanted to see more of Australia. I find on the basis of Ms Tran’s evidence and his that she told him that she had friends in Sydney. When she was studying for her Bachelor of Commerce degree between 2012 and 2014, she had known some people who had come from Sydney. They were “the friends”, about whom she had told her husband but she had not kept in touch with them. On arriving in Sydney, they rented a room with shared facilities and lived in similar arrangements until their arrest in July 2018.
Mr Nguyen continued to operate his online business. He was very busy as he had to find new suppliers of the products in Sydney and to negotiate good prices. He was also busy sourcing new clients for the products as he wanted to expand his business. His business activities led Mr Nguyen to feel that he was not paying much attention to his wife. She told him that she was busy going out and meeting her friends.
I find that, unbeknown to Mr Nguyen, Ms Tran had not been meeting friends but had been going alone to the Casino to play roulette and triple seven. She used money she had saved together with $5,000 that Mr Nguyen had given her when they went to Sydney to pay rent and pay for all their food and living expenses. On the basis of Ms Tran’s evidence, I find that she lost $1,000 on her first visit to the Casino. While she was at the roulette table, her husband called her on her mobile. She spoke with him in Vietnamese. After the call, the man who had been sitting next to her introduced himself as “Nam” and told her that he was came from the same town in Vietnam. From then, on they were talking with each other.
Ms Tran returned to the Casino on the following day with $2,000. Nam was there again. When she went to leave after she had lost all of her money, he asked her why she was leaving so early. Ms Tran told him that she had lost all of her money. He said that he had $5,000. If she wanted to play, she could play with his money. He was a bit tired and she asked him if he needed anything. The man told her just to give him her mobile phone so that he could exchange phone numbers and asked to take a picture of her driver’s licence. When she lost the $5,000, the man offered to drive her to her home. She accepted his offer and Nam dropped her off outside her home. Mr Nguyen was home at the time. She told him that she had been in the city with friends and had coffee.
Two or three days later, Ms Tran returned to the Casino. She took approximately $2,000 with her and lost it. Ms Tran saw Nam that day. Although she had not seen Nam between the time he drove her home and that day, Ms Tran called him on her mobile. Nam had left his telephone number when he phoned her mobile the day she had given it to him. She phoned him because she had gambled all of her savings and she wanted to borrow money from him. She thought that if he was tired as he had been on the previous occasion, he might have money she could play with. Nam met her at the Casino and gave her $10,000 to play with. Nam told her that she could pay him back in a few days and did not stay with her for the entire time while she gambled. She hoped that she would get lucky and could gamble her way out of her troubles but she did not. At the end of a session lasting some 12 hours, she had $500 left. Mr Nguyen was at home when returned there. He asked her where she had been. She told him that she had been out with friends.
This pattern continued over the next two or three weeks. Ms Tran said that she did not tell her husband what she was doing and I accept that he did not know. Ms Tran wanted to return to the Casino but she could not do so without money. She could not repay Nam the money she owed him. Therefore, she phoned Nam and told him that she could not pay him back. He told her that he could lend her money but that she was not to gamble it. She was to use it for rent and food. Ms Tran wanted to gamble it but she did not let Nam know that was her wish. He lent her a further $15,000 and she did not question why he would lend her that much money for rent and food. Nam dropped the money off to her house a few days after their conversation. In the end, Ms Tran owed the man $30,000 but she did not tell her husband about that either.
When Ms Tran told Nam that she could not repay the $30,000 debt, he then offered her a “way out”. Provided she showed him that she could do the work, the way out was to work for him for six months in his business. Ms Tran understood that his business involved the transfer of money from parents living outside Australia to their children studying in Australia. They chose Nam to transfer the money as he charged lower fees than the banks. When asked about that explanation, Ms Tran said that she was not thinking much at all. She just wanted to pay the debt. I accept that this was her frame of mind at the time. The pressure on her was to pay the debt.
Nam drove Ms Tran to a car park located near a Commonwealth Bank branch, gave her $2,000 and a bankcard and told her to deposit the money and take the receipt back to him. She did that a few more times and he told her that she could work for him for six months from mid March to mid September 2018. I accept that Ms Tran did not tell her husband about what she was doing. She thought that the work was not really difficult and there was nothing to worry about. The transfers took place two or three times each week.
I find that Ms Tran told her husband about what she was doing when she had a threatened miscarriage. She was very tired all the time in May 2018 and found that she could not make the deposits. That was when she told Mr Nguyen what she had been doing. She told him that there was nothing to worry about because no harm was being done. Ms Tran asked if he could help her by doing the transfers for two days until she recovered. I accept that, by this time, Ms Tran was having suspicions about the work. Each time, she met a different person for the money and was given a different mobile phone and SIM card. Despite her suspicions, she did not think that there was anything seriously wrong. Ms Tran, I find, did not tell her husband of her suspicions because she just wanted to convince him to help her.
Mr Nguyen helped Ms Tran until she miscarried and then worked for a week while she recovered. He would be given a few dollars extra amounting to $10 to $100 for each transfer. Whenever he completed a transfer and delivered a receipt, he would hand back the mobile phones and the SIM cards. Ms Tran told Nam that her husband was helping her. After a week, she told her husband to go back to his work and she could manage.
In the middle of May, Nam phoned her and asked to meet with her and her husband at a café for coffee. Nam told them that his assistants had reported that Mr Nguyen had done a good job and he had been looking for more people to do the work but without success. Nam told them that he would shorten the period to mid July if both of them worked for him. He also told Mr Nguyen that he would pay each of them $200 to $300 each week. I accept that Ms Tran convinced her husband to do the work but I also find that Mr Nguyen did the work in order to get some money to pay for their living expenses in Sydney and to pay off the debt. In addition to the amounts he was paid, he was allowed to keep the SIM cards and use any leftover credit on them for himself. Once the debt was paid, Mr Nguyen did not want to be involved in that type of work again.
When he met Nam, Mr Nguyen had an idea that the arrangement was not very legal. The main reason he undertook the work was to reduce the time taken to repay the debt. To his mind, the money was being transferred from Vietnam to Australia. At some point, he formed the view that the money might have been transferred to avoid the payment of tax.
In May, they were asked to do two or three transfers each week. The amounts totalled about $30,000 each time. The number of transfers increased in June to three or four times a week and the amounts transferred each day increased to $50,000 for each of them.
Mr Nguyen did not have strong suspicions until he had been doing the work for a week or so. They both thought that it might be to do with gambling on things such as the Football World Cup because the amounts transferred had increased. Whatever it was, they did not think that it was serious. They did not realise that the transfers were illegal until they were arrested.
While on bail, I find that Mr Nguyen worked as a convenience store manager for about six months. At the weekend, he undertook voluntary work by preparing the incense burning at the Buddhist monastery. In addition, he did religious penance for the what he had done. Although released from prison as soon as he had served the non-parole period of eight months, Mr Nguyen was immediately taken into immigration detention a Villawood IDC on 27 November 2019. On or about 30 January 2020, Mr Nguyen was transferred to the Melbourne Immigration Transit Accommodation so that he could be closer to his wife and family.
I find that Mr Nguyen knew nothing about Ms Tran’s ever having gone to the Casino before Ms Tran suffered the miscarriage. He had never known that she could do anything like that. In particular, he had no knowledge of her previous history of attending the Casino in Melbourne I his eyes, she had always been a good person. Sometimes, she was sad but he did not think that she could do things that led to her owing $30,000 to another person. At the time, she had been “very private”.
I find on the basis of Ms Tran’s evidence that she first gambled when she went to the Casino in Melbourne during 2015. She went a couple of times and gambled $100 to $200 each time. She used her own money to gamble and went on her own. She did not meet any person such as Nam in Melbourne. Her family were never told where she had been and she went when she felt depressed. At the time, she had graduated but could not find a job. When she was just “wandering around”, she would go to the Casino. She did not tell Mr Nguyen about her gambling in 2015 as she did not think it necessary to mention it. She next went gambling in about January 2018 when she knew that she had failed a summer subject in her nursing course and “just wanted to release it”.
Dr Lennings’ report
Dr Lennings reported that Mr Nguyen had described the circumstances of the offence in the following way:
“… Mr Nguyen said that he met the principals of the offence through his wife’s suggestion (this kind of money transfer is not perceived negatively in Vietnam). He tells me that he did not initially realise the activity was illegal in Australia, but when challenged about that (for instance the multiple Sim cards and phones) he agreed that he ‘sort of guessed’ it was illegal but did not think it was that serious. He tells me that he had not been involved in this practice in Vietnam, but was aware of the practice in Vietnam. He said the principals of the offence had told him that the financial transfers were for students, and he was not initially aware that his action was to support criminal behaviour.”[10]
[10] G documents; G2 at 105
Convictions
Mr Nguyen and Ms Tran were charged as co-offenders to two offences and pleaded guilty when they appeared before the Burwood Local Court. I am concerned only with Mr Nguyen in this matter although I will refer to Ms Tran from time to time.
Court
Date of Conviction
(Appeal)Date of offence(s) or charge(s)
Offence
(counts)Result
Burwood Local Court
8 April 2019
Deal with property reasonably suspected of being proceeds of crime when the value of the property was less than $100,000
Offence against Crimes Act 1900 (NSW); s
193C(2)
Maximum penalty: Imprisonment for 3 years
H 412314192
Imprisonment (aggregate): 13 months commencing 24/03/2019 concluding 23/04/2020.
Non parole period: 8 months commencing 24.03/2019 concluding 23/11/2019.
Indicative (H412314192) 2018/00209082-003 (003) 1 Month (H69537973) 2018/00280639-001 (001) 12 months.
Security appeal lodged.Burwood Local Court
8 April 2019
Deal with property reasonably suspected of being proceeds of crime when the value of the property was greater than $100,000
Offence against Crimes Act 1900 (NSW); s 193C(1)
Maximum penalty: Imprisonment for 5 years
H 69537973
Imprisonment (aggregate): 13 months commencing 24/03/2019 concluding 23/04/2020.
Non parole period: 8 months commencing 24.03/2019 concluding 23/11/2019.
Indicative (H412314192) 2018/00209082-003 (003) 1 Month (H69537973) 2018/00280639-001 (001) 12 months.
Security appeal lodged.Parramatta District Court
(Appeal)
5 June 2019
Deal with property reasonably suspected of being proceeds of crime when the value of the property was greater than $100,000
H 412314192
Order confirmed.
Imprisonment (aggregate): 13 months commencing 24/03/2019 concluding 23/04/2020.
Non parole period: 8 months commencing 24.03/2019 concluding 23/11/2019.
Indicative (H412314192) 2018/00209082-003 (003) 1 Month (H69537973) 2018/00280639-001 (001) 12 months.
Security appeal lodged.Parramatta District Court
(Appeal)
5 June 2019
Deal with property reasonably suspected of being proceeds of crime when the value of the property was less than $100,000
H 69537973
Order confirmed.
Imprisonment (aggregate): 13 months commencing 24/03/2019 concluding 23/04/2020.
Non parole period: 8 months commencing 24.03/2019 concluding 23/11/2019.
Indicative (H412314192) 2018/00209082-003 (003) 1 Month (H69537973) 2018/00280639-001 (001) 12 months.
Security appeal lodged.
Having regard to time already spent on remand, the sentence commenced on 28 March 2019 and concluded on 27 April 2020. Mr Nguyen was released on 23 November 2019 after serving the eight month non-parole period. On 25 June 2019, a delegate of the Australian Border Force Commissioner had advised Mr Nguyen that he would be placed in immigration detention when he was released on probation.[11] That is what happened.
[11] G documents; G2 at 227
Sentencing remarks
I will begin with the offences of which Mr Tran was convicted together with his wife, Ms Tran. The offences are provided for in s 193C of the Crimes Act 1900 (NSW) (Crimes Act). The first is set out in s 193C(1):
“A person is guilty of an offence if –
(a)the person deals with property; and
(b)there are reasonable grounds to suspect that the property is the proceeds of crime; and
(c)at the time of the dealing, the value of the property is $100,000 or more.
Maximum penalty – Imprisonment for 5 years.”
Section 193C(2) creates an offence in the same terms except that it relates to the value of property less than $100,000 and imposes a maximum penalty of three years’ imprisonment. In the case of both, s 193C(3) is relevant:
“Without limiting subsection (1) (b) or (2) (b), there are reasonable grounds to suspect that property is proceeds of crime in each of the following circumstances--
(a) in the case of subsection (1) (a)--the dealing involves a number of transactions that are structured or arranged to avoid the reporting requirements of the Financial Transaction Reports Act 1988 of the Commonwealth that would otherwise apply to the transactions,
(b) the dealing involves a number of transactions that are structured or arranged to avoid the reporting requirements of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth that would otherwise apply to the transactions,
(c) the dealing involves using one or more accounts held with authorised deposit-taking institutions in false names,
(d) the dealing amounts to an offence against section 139, 140 or 141 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth,
(e) the value of the property involved in the dealing is, in the opinion of the trier of fact, grossly out of proportion to the defendant's income and expenditure over a reasonable period within which the dealing occurs,
(f) the dealing involves a significant cash transaction (within the meaning of the Financial Transaction Reports Act 1988 of the Commonwealth) and the defendant--
(i) has contravened the defendant's obligations under that Act relating to reporting the transaction, or
(ii) has given false or misleading information in purported compliance with those obligations,
(g) the dealing involves a threshold transaction (within the meaning of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth) and the defendant--
(i) has contravened the defendant's obligations under that Act relating to reporting the transaction, or
(ii) has given false or misleading information in purported compliance with those obligations,
(h) the defendant--
(i) has stated that the dealing was engaged in on behalf of or at the request of another person, and
(ii) has not provided information enabling the other person to be identified and located.”
It is a defence to a prosecution for an offence under s 193C if the defendant satisfies the court that the defendant had no reasonable grounds for suspecting that the property was substantially derived or realised, directly or indirectly, from an act or omission constituting an offence against a law in force in the Commonwealth, a State or a Territory or another country.[12] What is meant by the expression “proceeds of crime” is found in s 193A:
[12] Crimes Act; s 193C(4)
“‘proceeds of crime’ means any property that is substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence.”
A “serious offence” means:
“(a) an offence (including a common law offence) against the laws of New South Wales, being an offence that may be prosecuted on indictment, or
(a1) an offence against a law of the Commonwealth that may be prosecuted on indictment, or
(b) the offence of supplying any restricted substance prescribed for the purposes of section 16 of the Poisons and Therapeutic Goods Act 1966 that arises under section 18A (1) of that Act, or
(c) an offence committed outside New South Wales (including outside Australia) that would be an offence referred to in paragraph (a) or (b) if it had been committed in New South Wales.”[13]
[13] Crimes Act; s 193A
Mr Nguyen and Ms Tran were sentenced together at the Burwood Local Court as co-offenders. Facts were agreed upon between them and the prosecutor. In so far as the sums dealt with by Mr Tran are concerned, they amounted to $603,115 for the charge under s 193C(1) and approximately $40,000 for the charge under s 193C(2). The basis on which the Magistrate found that there were reasonable grounds to suspect that the property was the proceeds of crime in the context of the charge under s 193C(1) was that the funds were grossly out of proportion to Mr Nugyen and Ms Tran’s income as set out in s 193C(3)(e). She found that the sum of $603.115 had been deposited into various accounts over a 16 day period between 21 June 2018 and 6 July 2018. There were reasonable grounds to suspect that matter in the context of s 193C(2) by virtue of being in physical possession of the smaller sum of $40,000.
The Magistrate had before her a Sentencing Assessment Report dated 6 March 2019 by Mr Watson, a Community Corrections Officer. Mr Watson reported that Mr Nguyen initially lacked insights into his offending behaviour but, after some deliberation conceded his actions were unlawful and accepted responsibility. Mr Nguyen accepted a referral to a cultural financial counsellor and he had attended sessions. Mr Nguyen remained engaged throughout the sentencing assessment process and had attended all scheduled appointments. Mr Watson assessed Mr Nguyen as presenting a T1/Low risk of reoffending were the court to make a supervised order.[14]
[14] G documents; G2 at 100-102
The assessment as a T1/Low risk of offending was made according to the Level of Service Inventory – Revised (LS1-R). The LS1-R is described in an article by Ian Watkins in the Research Bulletin issued by Corrective Services NSW Corporate Research, Evaluation and Statistics and dated 29 January 2011. The article described it as:
“… an actuarial assessment tool designed to identify the offenders’ risks and needs with regard to recidivism. That is, the LS1-R seeks to classify an offender’s risk of re-offending as well as to identify their particular criminogenic needs. While the LS1-R itself has been extensively validated internationally its use within the NSW correctional environment remains relatively unsubstantiated due to methodological limitations of previous research. The current study sought to rectify limitations of previous studies … The results revealed an encouraging patter no discrimination with proportionately more non-recidivists in the lower risk categories. An examination of offenders’ criminogenic needs profiles revealed that the LS1-R did not meaningfully discriminate between males and females or between non-ATSI and ATSI offenders. While the instrument’s predictive utility was acceptable with the majority of offenders, point estimates were notably lower with ATSI females. These findings are consistent with international research and provide empirical justification for the application of the LS1-R to specific populations.”[15]
[15] Exhibit I at 1
The Magistrate considered a submission made on behalf of Mr Nguyen and Ms Tran that their criminality had arisen because they were not registered under the relevant legislation being the Financial Transactions Reports Act 1988. She rejected that submission saying:
“… The criminality in this offence is because the property was substantially derived or realised directly or indirectly by any person from the commission of a serious offence and there were reasonable grounds to suspect that in relation to these offenders and how they came into possession of it. It would appear from Mr Jones’ submission, that the offenders wish to offer exculpation as to how they came to commit this offence, and the second offence, without them identifying at whose request, they deposited these moneys and they had this money in their possession.
The fact that those persons, to whom they deposited as the assertion was, were lawfully entitled to the funds, is essentially an assertion that traverses the plea. The element of the offence is that the property was the proceeds of crime, and so that is not a ground of exculpation.”[16]
[16] G documents; G2 at 39
The Magistrate continued:
“… To my mind I note that it is an aggravating feature, as is admitted, that the offences were committed for financial gain, and I am satisfied that it is an aggravating feature that it is clearly part of organised crime. The sums are too substantial to be anything else. I note the very short amount of time in relation to some $600,000, it could only be described as an intense. That is a substantial sum of money over a period of 16 days.
On a scale of serious, very serious and most serious, I am satisfied that the offence should be regarded as within the range of very serious. In respect of each of the second charges preferred against the offenders, there was some $43,000 found cash, in the possession of Mr Dung and some $45,000 found in the possession of Ms Tran. On a scale of serious, very serious and most serious for offences of this type, bearing in mind that this is the offence where the amount of proceeds of crime found in their possession, effectively being dealt with by them, I am satisfied that this falls somewhere between serious and very serious.”[17]
[17] Sentencing remarks; 8 April 2019 at 8
As to their personal situation, the Magistrate said:
“… In respect of Ms Tran, I have been provided with a report by Mr Green, psychologist. … It would appear from that property that Ms Tran is a well-educated person. She was disappointed in completing her degree not to be able to obtain employment. She commenced a further degree in nursing and did not do so well as she did in her initial financial degree. She was married to the co-offender and they were finding it hard to find work in Sydney. She said to the psychologist that she was approached by a man when she was at a casino, and after a short conversation she agreed to engage in this conduct of putting money into bank accounts. She was told she would earn between 100 and $200 for the money she deposited.
She was a person found by the psychologist to be suffering from a depressive disorder of mild to moderate severity. She is regarded as a low risk of reoffending, which is what Community Corrections said about her as well. She is a person who, in the ordinary way has had difficulties in her family life, she was fortunate to have a good relationship with her mother and a good relationship with her step-father, sadly her relationship with her father and her grandfather was poor. She produces a reference from Wayne Hudson, who is in fact her step-father and who describes her shame, and their shock at the commission of this offence, and pledging to support her. She has also provided a letter to the Court dated 25 January, in which she says she was depressed at the time she agreed to commit these offences. She says, ‘I understand how serious my actions were, I take responsibility for this, I want to be able to make up for the community, being in prison was terrible.’ I note that as I understand it she was refused bail for 15 days. She said, ‘I am determined to live an honest life. I have a younger sister and I want her to do good and positive things, not acts which damage or waste community resources. I have done a very stupid thing which I regret.’”[18]
[18] G documents; G2 at Sentencing remarks; 8 April 2019 at 9; G documents; G2 at 40
Having regard to his circumstances, the Magistrate continued:
“… Mr Nguyen also presents as an intelligent well-educated man, who has come to Australia, who does not have any problem with the use of drugs or the like, or has any problem with gambling. He presented as a quiet and self-effacing man. The psychologist said,
‘Mr Nguyen seems to have wandered into this offence without considering the implications of his behaviour on the basis of financial need, opportunity and the encouragement of his wife. At the time it does not seem that despite his intelligence he thought through the consequences of his behaviour, which he now has and demonstrates significant regret for and a desire to atone.’
I also have in respect of Mr Nguyen, a reference from Quoy Quang Phan, who is an apprentice electrician, who writes in support of Mr Nguyen, being a relative of his, he being Ms Thuy’s wife’s cousin’s husband. He says he has known him for three years and he is deeply affected by what he has done and he knows that he wants to take responsibility for what he has done. Finally I have a letter dated 26 January from Mr Nguyen, in which he says, ‘At the time we did the offence I don’t think my wife and I were thinking or understanding with clear minds, I’m very sorry for hurting the community in this way.’ I accept that. There is also a report stating that he has been engaging in the English classes and he has engaged and obtained something called a warehousing certificate, and there is a statement of competence et cetera.”[19]
[19] Sentencing remarks; 8 April 2019 at 9-10
The Magistrate factored a 10% reduction of sentence due to the guilty pleas entered by Mr Nguyen and Ms Tran. She said that, to her mind, the utilitarian value of the guilty plea had been diminished by the fact that Mr Nguyen had initially entered a plea of not guilty. When the prosecution brief was delivered, he changed his plea. The aggregating sentencing provisions applied. On that basis, she sentenced them to a term of imprisonment of 13 months with a non-parole period of eight months. The sentence began on 24 March 2019 and they were eligible for release on 23 November 2019. A forfeiture order was made in relation to the cash in their possession.
I note that the Fact Sheet dated 17 July 2018 recorded that Ms Tran had three mobile telephones in her backpack, a Vietin Bank Visa Debit card and approximately $43,020 in cash.[20] Six mobile telephones and SIM cards were located in Mr Nguyen’s back pack when he was arrested.[21]
[20] G documents; G2 at 98
[21] G documents; G2 at 99
Behaviour in remand, on bail, in prison and on parole
Mr Nguyen was well-behaved while in remand after being charged and then on bail. He had no infringements while in prison where he took English classes and worked as a cleaner. Mr Nguyen was released on parole on 23 November 2020 but was taken into immigration detention immediately.
Mr Nguyen’s further studies
Mr Nguyen plans to study warehouse administration at has a Record of Attendance issued by Navitas for having attended Warehouse and RF Scanning course from 29 January 2019 to 4 April 2019.[22] He has a Statement of Attainment in four competencies, which are part of a Certificate II in Warehousing Operations. The Statement is dated 29 March 2019. His Vietnamese licence to work as a forklift driver is not recognised in Australia but he plans to obtain an Australian licence.
[22] G documents; T2 at 113
Psychological Reports
Dr Lennings has a 40 year history of working within the forensic and mental health fields. I have referred to aspects of his pre-sentencing report elsewhere in these reasons. He concluded:
“Mr Nguyen seems to have wandered into this offence without considering the implications of his behaviour and on the basis of financial need, opportunity and the encouragement of his wife. At the time it does not seem that despite his intelligence he thought through the consequences of his behaviour, which he now has and demonstrates significant regret for and a desire to atone. Mr Nguyen seems oriented to community work and should a non-custodial option be available, he would likely be an excellent candidate for a community service order. Mr Nguyen does not present with obvious criminogenic factors, he has a moral compass and a sense of community involvement and does not present as likely to recidivate. His risk to the community is low, despite the offence.
At this stage, Mr Nguyen’s needs are practical: to maintain employment, stable accommodation and his marriage. He does not present as requiring or likely to benefit from treatment as there are no discernible treatment targets.”[23]
[23] G documents; G2 at 107
Dr Michael King, Clinical Psychologist, prepared two reports. One is dated 6 August 2019 and the other 25 June 2020. The second is co-signed by Mr Slobodan Bendjo, Registered Psychologist and Dr King prepared the first with the support of Mr Bendjo. The first was prepared after Dr King interviewed Mr Nguyen, Ms Tran and his father-in-law and mother-in-law between 30 August 2019 and 5 September 2019.[24] He also had statements made by the family members and Mr Nguyen and a Facts Sheet setting out circumstances of the offences. Dr Lenning’s report had also been given to Dr King. In addition to the interviews, psychometric assessment was undertaken using tools that were either language or culture free or interpreted into Vietnamese. Dr King then undertook a psycho-social opinion involving three measurable components: the mental complexity of Mr Nguyen and Ms Tran; the personality structure of each; and the characteristics of the attachment profile of each.
[24] See further [100] below
Dr King reported in his first report that:
“The emerging picture of Mr Nguyen is that of a person who is within the ‘normal’ band of intelligence (that is, within the middle of 2/3 of intellectual ability), but operating in the lower half of that normal band. He has an underlying view of himself as an outgoing and social person however in his present circumstances he has a limited array of social support outside the circle of his wife and her family.
He is capable of ‘achieving success’ across a range of activities and tasks, providing that there is a simple and straightforward path to follow. However as the complexity of the task situation is elevated, his capacity to plan ahead dramatically collapses and he tends to blindly and unquestioningly follow through with repeated actions. He has somewhat restricted capacity to foresee longer term consequences, and the results of psychometric assessment match with ‘real life’ facts of this case: when faced with complexity he will tend to follow instructions or ideas given to him by other people, or will simply repeat prior actions without questioning the effectiveness of that approach.
The wife (Thuy) is a person of quite limited intellectual capacity and is wholly dependent upon her husband. Her emphatic and anxious attachment to him is shown in the appended assessment. At the emotional level, at the social level and also at the cognitive level this woman is entirely dependent upon her husband.
An understanding of the type of emotional bonding, as well as the intellectual capacity of each (husband and wife) is essential to an understanding of the changes relating to this matter:
°ž The wife has a level of intellectual capacity which is likely within the ‘disability’ range – and this level of functionality is shared by her mother;
«The wife is strongly and indelibly ‘attached’ (in the romantic sense, as well socially and in the end economically) to her husband.
«The husband (Mr Nguyen) adores his wife and recognises his need to support her. He sees himself as the person who is responsible for providing this needy (albeit attractive and endearingly friendly) partner
«The same pattern of ‘near average’ intelligence, matched in a stable relationship with a wife of ‘disability level’ intellectual capacity is now evident in the analysis of Mr Nguyen’s father-in-law and mother in law …
«Mr Nguyen’s entrenched tendency to ‘support’ his wife has blurred into a form of unquestioning ‘servitude’ as he seeks to satisfy her needs. He has (up until now) done his best to comply with any and all suggestions and requests from his wife.
The present situation (the legal charges and consequences) have served to focus Mr Nguyen’s attention upon the broader responsibilities of living (and seeking permanency) in Australia, and all professional evaluations (various already-submitted reports and interviews) confirm the low risk of similar errors of judgement.”[25]
[25] G documents; G2 at 138
If Mr Nguyen were removed from Australia, Dr King concluded, it would:
“… leave this vulnerable woman, who will ultimately be released from custody, in a vacuum of social support. In the absence of her husband she will rely heavily upon community support and will likely be abused and taken advantage of.”[26]
[26] G documents; G2 at 139
Earlier, Dr King had explained the type of emotional bonding between Mr Nguyen and Ms Tran and their intellectual capacity in order to understand the charges. Of Ms Tran, he said she:
“… is a very vulnerable person who does not have the capacity to suddenly upgrade her quite limited cognitive capacity. She will inevitably ‘need’ ongoing support and without that support her vulnerability will inevitably lead to social (although not necessarily ‘legal or criminal’) difficulties which she will not be able to resolve. For this she needs her husband.
Thuy’s level of vulnerability is clearly illustrated by the way in which she became embroiled with other parties who were prepared to use her unquestioning incapability to their own ends.”[27]
[27] G documents; G2 at 139
He had said of Mr Nguyen that he:
“… is a man who recognises the need to ‘support his wife’. He is emotionally and consciously committed to supporting and providing for Thuy. He has manifestly learned from the present experience, and in the future will not unquestioningly follow suggestions and instructions from his wife. Mr Nguyen’s devotion to his wife can be seen in his failure to ‘think through’ the nature of her request to him that he carry out the actions.”[28]
[28] G documents; G2 at 139
In Dr King’s second report is dated 25 June 2020 and refers to interviews and assessments carried out between 30 August to 5 September 2019 and February 2020. It was written in similar terms to the first but with some key differences that were not explained. His finding that Ms Tran and her mother had levels of intellectual capacity which is likely within the “disability” range in his first report was replaced with findings that both had a level of intellectual capacity within the “normal” range.[29] He also added to what had previously been his final paragraph and added another altered as follows:
“« Mr Nguyen’s entrenched tendency to ‘support’ his wife has blurred into a form of unquestioning ‘servitude’ as he
seekssought to satisfy her needs. He has (up until now) done his best to comply with any and all suggestions and requests from his wife although it is now recognised that his wife in turn can yield to the social manipulation of others.«The structure of past errors and potential for a more appropriate future for Mr Nguyen is now shown from the present extensive psychometric analysis of the entire family group. Mr Nguyen will return to his position as the ‘leader’ in terms of making social or future-relevant decisions.”[30]
[29] Exhibit H at 5
[30] Exhibit H at 5
Ms Tran’s health care
Ms Tran’s General Practitioner prepared a Mental Health Stepped Care Referral Form for her on 10 June 2020. Ms Tran had consulted him with her mother for worsening depression/anxiety that started two or three years ago and was getting worse recently. Ms Tran’s medical practitioner referred to he miscarriage and noted that she had referred also to COVID, financial stress and her husband’s being in immigration centre. He noted that she preferred to talk in detail to the Mental Health Team but also reported on her symptoms of depression, nil energy, low motivation, loss of interest, hard to fall asleep, low concentration, low self esteem, weight loss, withdrawal and feelings of worthlessness.
Mr Mohammad Shahab is Clinical Counsellor and Accredited Mental Health Social Worker employed by Banyule Community Health. He wrote a report dated 20 July 2020 regarding Ms Tran who had been referred by her General Practitioner. Mr Shahab noted that Ms Tran’s behaviour was respectful and cooperative but that her mood and affect were those of High Anxiety, moderately Depressed and Congruent Affect. Ms Tran found it hard to listen and was distracted. Frequently, Mr Shahab had to repeat his questions and Ms Tran appeared very preoccupied. He noted her answers and her expression of remorse around the events leading to her being convicted together with her husband.
Mr Shahab concluded that Ms Tran:
“… is suffering from symptoms which is consistent with a depressive disorder and Anxiety disorder.
Writer is providing Ms Tran with some Trauma Informed Cognitive Behavioural Therapy to gain emotional regulation.
It appears to the writer that naivety was the major factor for Ms Tran becoming tangled with the unlawful activities and to request the tribunal to kindly bring… Ms Tran’s fragile state of mind and her past Trauma into consideration.”[31]
[31] Exhibit J
DIRECTION No. 79
Direction No. 79 was made by the Minister for Immigration, Citizenship and Multicultural Affairs, on 20 December 2018. Paragraph 2 states that the Direction commenced on 28 February 2019. That is a date past the date on which the delegate made the decision under s 501CA(4) not to revoke the cancellation decision but it seems to me that Direction No. 79 applies to the Tribunal when it is reviewing such a decision. Review of a decision leads to the Tribunal’s making the decision afresh on the evidentiary material available to it. Making that decision afresh is an exercise of the powers under the Migration Act. That follows from s 43(1) of the AAT Act when it provides that:
“For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision …”
The Tribunal is exercising powers under the Migration Act and particularly under s 501CA(4).[32] Therefore, under s 499(2A), the Tribunal must comply with a direction given under s 499(1) about:
“(a) the performance of those functions; or
(b)the exercise of those powers.”
[32] Although the Tribunal exercises powers under the Migration Act, I do not think that the Tribunal can be described as a “body having functions …” under that Act. Its functions are conferred under the AAT Act. They are to review decisions in respect of which an application has been made to it. An application may only be made to it if another enactment provides that it may be made but the application is made under s 29 of the AAT Act, as varied by that other enactment. Therefore, the application is not made under the Migration Act but under the AAT Act. The review is conducted under the provisions of the AAT Act as modified by that other enactment. Even though the operation of its provisions may be modified by the other enactment, the Tribunal’s functions are those under the AAT Act and not under the Migration Act.
Paragraph 6.1 of the Direction No. 79 begins with a statement of objectives but I will refer only to the first:
“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[33]
The objectives are followed by passages described as “General Guidance” and “Principles”.
[33] Direction No. 79 at [6.1(1)]
Paragraph 6.2(1) appears under General Guidance and states:
“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.”
The Principles establish the framework within which the individual considerations developed in Parts A, B and C of Direction No. 79 are set. They give those considerations their form, pattern and underpinning framework. The Principles set out in paragraph 6.3 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) sets out how the discretion under s 501 is to be exercised. Of relevance in this case is Part C of the Direction as it applies when a non-citizen’s visa has been cancelled. I will set out paragraph 7(1) only in so far as it relates to that Part:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)…
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”
Paragraph 8 of Direction No. 79 sets out how the considerations in the various Parts, including Part C, are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case.[34] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
“… 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.”
[34] Direction No. 79 at [8(1)]
In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[35] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … cancellation of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[36]
[35] Direction No. 79 at [8(2)]
[36] Direction No. 79 at [8(4)] and [8(5)]
Part C of the Direction begins with three considerations that are characterised as primary considerations: the protection of the Australian community from criminal or other serious conduct; the minor children in Australia; and the expectations of the Australian community.[37] Each of these considerations is developed in paragraph 13. Paragraph 14 then sets out what are described as “other considerations”. These are then developed under the headings of: international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed.
[37] Direction No. 79 at [9]
Protection of the Australian community
The first primary consideration relating to the protection of the Australian community begins with the general statement:
“When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non‑citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.”[38]
[38] Direction No. 79 at [13.1(1)]
That statement makes clear that the person’s conduct, past and future, is relevant. That is stated expressly in paragraph 13.1(2) when decision-makers are told that they:
“… 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.”
A. The nature and seriousness of Mr Nguyen’s conduct
Paragraph 13.1.1(1) goes on to expand on the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
“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 a non-citizen was in immigration detention; during an escape from immigration detention, but before the non-citizen was taken into immigration detention; during an escape from immigration detention, but before the none citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;”[39]
[39] Section 197A of the Migration Act states that “A detainee must not escape from immigration detention. Penalty: Imprisonment for 5 years.”
A.1 Consideration
A.1.1What is the relevance of any inconsistencies between the facts necessarily underpinning the convictions and those underpinning the sentences?
Mr Hughan submitted that the facts on which the Magistrate sentenced Mr Nguyen are not facts consistent with the offences to which he pleaded guilty and of which he was convicted. Before I decide whether there is in fact a discrepancy, I will have regard to the principles established by the authorities regarding the interplay between convictions and sentences imposed by the courts and the task of administrative decision-makers making unrelated decisions but required to consider evidence that includes evidence of matters that led to the imposition of those convictions and sentences.
I will begin with the general principle that a plea of guilty by an accused, for example, does not, of itself, constitute a conviction for an offence. As the Full Court of the Supreme Court of Victoria said in R v Tonks:[40]
“… A conviction is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused. It may be that even a determination of guilt will not in all cases amount to a ‘conviction’, for the latter term may be used in a particular context as meaning not merely conviction by verdict where no judgment is given, but conviction by judgment. …”[41]
[40] [1963] VR 121
[41] [1963] VR 121 at 127
There are various ways in which a court may show that it has determined guilt. They were described by Gibbs J in the Supreme Court of Queensland in R v Jerome and McMahon:[42]
“In the present case the court has done nothing upon the plea of guilty to indicate a determination of the question of guilt. The court might do that by imposing a punishment; by discharging a prisoner on his own recognisances; by releasing him upon parole; or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained. Nothing of that kind occurred in the present case. The pleas of guilty, it is true, were said to be accepted, but they were never acted upon in such a way that the court finally determined the guilt of the accused persons.”[43]
[42] [1964] Qd R 595
[43] [1963] Qd R 595 at 604 expressly adopted in Griffiths v R (1977) 137 CLR 293 at 335 per Aickin J
I will now turn to the interplay between a conviction and the task that must be undertaken by an administrative decision-maker. A fundamental principle is that:
“It is impermissible for the Tribunal to impugn the conviction on which a deportation order is based …”.[44]
[44] Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349 at [24]; 240; 354; Branson, Lindgren and Emmett JJ
The principle is illustrated by two cases. Davies J said in Minister of Immigration and Ethnic Affairs v Daniel:[45]
“In a review by the Administrative Appeals Tribunal of an order for deportation made under either s.12 or s.13 of the Migration Act 1958, it is not the function of the Tribunal to review the propriety of the relevant conviction. That is the function of appellate courts. While it stands, the conviction invokes the power to make the order and in itself affects the reputation or standing in the community of the convicted person. … And the conviction itself is evidence and usually strong evidence of the commission of the crime for which the deportee was convicted.”[46]
[45] [1981] FCA 212; (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135; Fisher, Davies and Lockhart JJ
[46] [1981] FCA 212; (1981) 61 FLR 354; 39 ALR 649; 5 ALD 135; Fisher, Davies and Lockhart JJ at 362; 656; 141. In certain circumstances, s 12 of the Migration Act, as then in force, permitted the Minister to order the deportation of an alien convicted of a crime of violence. Section 13 gave the Minister that power if a person had been convicted of certain offences committed within five years after his or her entry into Australia.
The policy underpinning this was touched upon by Fox J, with whom Davies J agreed, in Minister for Immigration and Ethnic Affairs v Gungor[47] (Gungor):
“… What does seem to me to be highly improbable is that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source (albeit one functioning in a number of respects like a court, and comprising a judge) should review the conviction on its essential factual basis. The policy must be that the conviction is a matter for the criminal law and its procedures. Appeals are there available. If new or fresh evidence comes to hand, the criminal procedures can be availed of. There can in rare cases be an application for a pardon, perhaps preceded by a special judicial inquiry. While it stands, the conviction must be conclusive so far at least as concerns a Tribunal reviewing a decision which takes the conviction and the Minister's decision as its starting point. When I say conclusive, I mean conclusive as to the guilt of the accused in relation to the offence charged, and of the sentence imposed. …”[48]
[47] [1982] FCA 99; (1982) 63 FLR 441; 42 ALR 209; 4 ALD 575; Fox, Fisher and Sheppard JJ
[48] [1982] FCA 99; (1982) 63 FLR 441; 42 ALR 209; 4 ALD 575 at 445-446; 212-213; 578 per Fox J with whom Davies J agreed generally
The practical difficulties of the task of determining the factual basis on which the conviction was based were considered by Sheppard J in Gungor:
“ I have earlier referred to the difficulty which often confronts a court or tribunal which has to determine whether a particular issue must necessarily have been resolved by a trial court before which an accused person has been convicted. Often it will not be possible to say whether such an issue was resolved or not. But I do think, as I previously said, that the difficulty can be over emphasized, careful though one must be in drawing a conclusion. And, with respect, I do not think that the fact that there can be no issue of estoppel arising out of a criminal trial of itself prevents the exercise being embarked upon.
In the present case there can be no doubt, having regard to the earlier analysis of the evidence, that the respondent was convicted of actual supply of the drug by reason of the jury’s acceptance of what the police officers claimed he had admitted to them. Otherwise, as the learned trial judge said, there could have been no conviction. The jury would have been bound to acquit. Nevertheless the Tribunal has concluded that, whilst the applicant was rightly convicted, that was the case only because the evidence led before it established that he was not himself a supplier but rather a person who had aided and abetted another person who had supplied the drug. He was a principal in the second degree—not in the first degree, as the jury must have found.
The taking of such a course by the Tribunal has, in my respectful opinion, the effect both of going behind the conviction and setting it at nought. In my opinion it was not open to the respondent to lead evidence for the purpose of showing that he was a principal in the second degree rather than in the first. Certainly it was not open to the Tribunal to treat him as convicted on the basis of that conduct rather than upon the basis of conduct which made him a principal in the first degree. To proceed as it did involved it in an error of law.”[49]
[49] [1982] FCA 99; (1982) 63 FLR 441; 42 ALR 209; 4 ALD 575 at 468-469; 233; 596 per Sheppard J, with whom Davies J agreed. Mr Gungor had been convicted of an offence under the Poisons Act 1966 (NSW) on the basis that he was the supplier of the drug. His evidence at the hearing before the Tribunal supported a conviction of an offence equivalent to aiding and abetting the offence. Section 351 of the Crimes Act 1900 (NSW) provided that any person who aided, abetted, counselled or procured the commission of any misdemeanour, whether at common law or by statute, may be indicted, convicted and punished as a principal offender. On that basis, the Tribunal had accepted Mr Gungor’s evidence that he was a principal in the second degree but not in the first. The evidence he gave at the Tribunal hearing was not before the jury and he was convicted as a principal in the first degree i.e. as the supplier of the drugs and not as a person aiding and abetting the supplier. A similar approach was taken by the Tribunal in Re Mlinor and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771; 25 AAR 231 at [19]; 776; Deputy President Chappell
Where an administrative decision-maker’s powers depend on a person’s having been given a particular sentence:
“… it is not open to the Tribunal to engage in any inquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under s 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.”[50]
[50] [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349 at [40]; 244; 358; Branson J
In Minister for Immigration and Multicultural Affairs v SRT, the Full Court of the Federal Court explained the policy underpinning this principle:
“ While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point. Serious practical questions would arise if the position were otherwise. The Tribunal could arrive at its own decision as to whether the person concerned did what he was charged with doing, and, for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial. Accepted trial procedures would be absent. The Crown would not be a party: cf Minister for Immigration and Ethnic Affairs v Gungor at 445-446 per Fox J.”[51]
[51] [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349 at [46]; 245; 359
While the basis on which the Judge imposed the sentence cannot be ignored, the passing of time between the sentencing and the Tribunal’s consideration may mean that certain matters assume greater importance for the Tribunal than they had for the sentencing Judge.[52] This was explained by Davies J in Beckner v Minister for Immigration, Local Government and Ethnic Affairs[53] (Beckner):
“ The Administrative Appeals Tribunal, when it is reviewing a decision to deport, is not bound by or limited to all the findings of fact made by a sentencing judge in the course of giving his reasons for sentence. The function of sentencing a person convicted of a crime is a different function from that of deciding whether or not the convicted person should be deported. Matters which may be of great significance to a decision to deport, because for example they go to the risk of recidivism, may be of little significance to a sentencing judge. In the present case, for example, where a long term of imprisonment was imposed because of the nature and seriousness of the crime, it was not necessary for the sentencing judge to determine whether Mr Beckner's crime was an isolated event or formed part of a pattern of drug-related activity on his part. From the point of view of deportation, however, such a matter was important. The Tribunal had to form a view as to whether Mr Beckner was such a person as should be allowed to remain in Australia.”[54]
[52] [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349 at [47]; 245; 359
[53] [1991] FCA 264; (1991) 30 FCR 49; 23 ALD 556; 13 AAR 433
[54] [1991] FCA 264; (1991) 30 FCR 49; 23 ALD 556; 13 AAR 433 at [7]; 50-51
A distinction is drawn between a conviction or sentence upon which the exercise of an administrative power is based and a conviction and sentence on which the power does not depend. In respect of the latter, they are:
“… strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.
… [A]lthough a decision-maker under s 200 of the Act may, in a case in which the heavy onus on a person who seeks to challenge the facts essential to a criminal conviction and sentence (other than that on which the power to deport is based) is satisfied, accept evidence which contradicts such facts, he or she is not entitled to reach or express a view that the person was wrongly convicted (see Saffron per Lockhart J at 592).
… [T]he above limitations on the matters to which a decision-maker under s 200 of the Act is entitled to have regard do not mean that the decision-maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.”[55]
[55] Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313; 62 ALD 673 at [43]-[45]; 325-326; 684-685; Branson J
The applicable principles were summarised by the Court of Appeal of the Supreme Court of Victoria in Secretary to the Department of Justice and Regulation v LLF:[56]
“The parties were agreed as to the applicable legal principles. The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. … In the latter case, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based. …”[57]
[56] [2018] VSC 500; Beach, McLeish and Niall JJA
[57] [2018] VSC 500 at [42]; citations omitted and adopted by Bromberg J in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [76] in the context of ss 501(3A) and 501CA of the Migration Act.
In this case, the conviction and the sentence are the two factors that found the power under s 501(3A). I have summarised its requirements at [1] and also [3] above. Mr Nguyen has been convicted and was sentenced to a term of imprisonment of 12 months or more. Those two facts cannot be ignored or contradicted. It also follows that the essential facts on which they are based cannot be impugned. What the authorities have not had need to address is the situation that arises in this case. That is, a situation in which the facts on which the conviction is founded and which are reflected in the Magistrate’s sentencing remarks are seemingly contradicted at a later time in those sentencing remarks.
D. Expectations of the Australian community
Paragraph 13.3(1) states:
“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.”
D.1 How are those expectations determined?
Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non‑citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. A consideration of what is an acceptable risk and what is not will be informed by the Principles set out in the current Direction. Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1) that:
“… 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.”
Although ultimately a matter for judgment, the facts on which that judgment is made must be established by the evidence. Sometimes evidence will be found in what is said in any sentencing remarks, if they are available, but regard must be had to all of the evidence. Ultimately, the judgment that a decision-maker comes to must be one that is able to be explained.[72]
[72] I explained the reasons for coming to this view in Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [60]-[72], which I adopt.
Paragraph 13.3(1), or its equivalents in paragraphs 9.3 and 11.3, has been considered in various cases over recent years. They include Uelese v Minister for Immigration and Border Protection[73] (Uelese), YNQY v Minister for Immigration and Border Protection[74] (YNQY), Afu v Minister for Home Affairs[75] (Afu) and DKXY v Minister for Home Affairs[76] (DKXY). which took different views of Oluwafemi v Minister for Home Affairs.[77] The most recent is FYBR v Minister for Home Affairs.[78] In Re GQVS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[79] I reached the following conclusions, which I adopt for the reasons I gave in that case, regarding:
[73] [2016] FCA 348; (2016) 248 FCR 296; 69 AAR 8; Robertson J
[74] [2017] FCA 1466; Mortimer J
[75] [2018] FCA 1311; Bromwich J
[76] [2019] FCA 495; Griffiths J
[77] [2018] FCA 1389; Thawley J
[78] [2019] FCAFC 185; Charlesworth and Stewart JJ; Flick J dissenting
[79] [2020] AATA 178 at [78]-[90]
“… the principles that are common to the majority of judgments in considering community expectations are:
(1)The expectations of the Australian community with regard to the applicable norms for the refusal or cancellation of visas on character grounds either generally or in an individual case are neither homogenous nor significantly homogenous.[80]
[80] FYBR [2019] FCAFC 185 at [66] per Charlesworth J and [87] per Stewart J
(2)In such an environment, the government is permitted to establish what is the norm of the expectations of the Australian community.[81]
[81] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296 at [65]; 309 per Robertson J and Afu [2018] FCA 1311 at [85] per Bromwich J
(a)In summary, the norm that the government has established is that “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”[82]
[82] FYBR [2019] FCAFC 185 at [101] per Stewart J
(3)It is not the role of the Tribunal to attempt to make its own determination of the expectations of the Australian community.[83]
[83] Oluwafemi [2018] FCA 1389 at [37] per Thawley J
(a)The Tribunal is required to give effect to those norm[s] stated by the government.[84]
[84] Afu [2018] FCA 1311 at [85] per Bromwich J
(b)A decision-maker may not determine the community expectations in each case or equate them with his or her own view as to the preferable outcome of the review of the decision.[85]
[85] FYBR [2019] FCAFC 185 at [74] per Charlesworth J
(c)Therefore:
(i)the expectations of the Australian community cannot be measured as though they were a matter of provable fact.[86]
[86] Afu [2018] FCA 1311 at [85] per Bromwich J
(ii)they are not matters requiring evidence for the language in paragraph 6.3(2) of the Principles and repeated in paragraphs 9.3, 11.3 or 13.3, as the case may be, is a statement of the views or policy of Government.[87]
[87] DKXY [2019] FCA 495 at [64] per Griffiths J
(d)The expectations of the Australian community remain the same i.e. that people will obey the law and that, if they do not, there is a risk that they will not be granted a visa or hold one.[88]
(4)The Tribunal remains under a duty to consider all relevant circumstances of each case in order to decide whether, in that particular case, it is appropriate that an application for a visa be refused, a visa be cancelled or a revocation of a cancellation of a visa be refused.[89]
(a)That duty, which necessarily requires the exercise of discretion, arises from the language used in Direction No. 79:
(i)The use of the phrase ‘may be appropriate’ in paragraphs 9.3, 11.3 or 13.3, as the case may be, means that the Tribunal must assess the circumstances in every case to ensure whether, in those particular circumstances, it is appropriate to cancel or refuse a visa or to refuse to revoke the cancellation of a visa.[90]
(ii)Each paragraph requires a decision-maker to have ‘due regard’ to the government’s views but ‘What amounts to “due regard” will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.’[91]”[92]
[88] FYBR [2019] FCAFC 185 at [97]-[98] per Stewart J
[89] An underlying tenet of the Principles set out at paragraph 6.3 of Direction No. 79 is:
(1)Entry to and presence in Australia are privileges conferred on persons in the expectation that they are, and have been, law-abiding, will respect its institutions and will not cause or threaten harm to individuals or the Australian community: paragraph 6.3(1); and
(2)Australia has a low tolerance or any criminal or other serious misconduct but the level of its tolerance in any particular case will be determined by reference to matters such as the nature of the offending or misconduct, the time that a person has been in Australia and the contribution made in the past to the Australian community: paragraphs 6.3(3)-(6).
[90]FYBR [2019] FCAFC 185 at [73] per Charlesworth J and [97] per Stewart J
[91] DKXY [2019] FCA 495 at [31]-[33] per Griffiths J
[92] [2020] AATA 178 at [90]
D.2 Consideration: Mr Nguyen’s circumstances
As Direction No. 79 states, the Australian community expects non-citizens to obey its laws while they are in Australia. Mr Nguyen has not done that and, not only has he not done that, he has broken Australia’s laws within a few months of arriving in the country. If he had been the principal in the offences of which he has been convicted or even the perpetrator of crimes reasonably suspected of underlying the proceeds in which he was dealing, I would have found that non-revocation of the cancellation would be appropriate simply because of the nature of the crimes. Large sums of money were involved over a 16 day period and I find on his evidence and that of Ms Tran, that they were engaged in depositing increasingly large sums of money at the behest of others over a longer period. In the case of Ms Tran the transactions were made from approximately February 2018 and, in the case of Mr Nguyen, from May, until they were apprehended on 6 July 2018.
Mr Nuygen is far from being the perpetrator of the crime leading to there being proceeds of that crime or the architect of the money transfer arrangements. He is the husband of a woman who was clearly targeted by Nam as a person who was in desperate straits and who could be manipulated in carrying out the transfers. Ms Tran was in need and she could be manipulated because of her need and, although this was not necessarily known to Nam, because she had not told her husband about her gambling problems. The arrangement has aspects of a contract of indenture because she repaid the debt not in cash or even in cash equivalence for her work but in making the deposits as Nam required. At no time did Nam attend an ATM himself to show her how to deposit the money and obtain the receipt. He remained in his car and removed from the transaction, which she carried out according to the instructions he had given her. She then met his associates and made the transfers according to their instructions.
That might have been how matters continued until September 2018 had Ms Tran not suffered a miscarriage. Mr Nguyen was busy with trying to build up his online business and Ms Tran was going out as she had before except that she was working for Nam rather than having coffee as she had told her husband. When she was unwell and at risk of suffering a miscarriage, Ms Tran asked her husband to help her. She did not tell him of her suspicions about the work because she wanted to convince him to do it for her. He did it because he wanted to support her and care for her. Shortly after he started to help her, Ms Tran suffered a miscarriage.
Mr Nguyen’s undertaking the transactions for Ms Tran for a week is one thing but his agreeing to work for Nam is another. He has led a blameless life and succeeded in his studies in Vietnam and yet falls foul of the law in his first few months in Australia. Part of his doing so was out of love for his wife and to reduce the amount of time they had to repay Nam the debt of $30,000. Part, however, was out of the need to earn money to pay for their living expenses in Sydney. Those expenses were higher than he had expected and higher than he had experienced in Melbourne. They no longer had their savings of $5,000 because Ms Tran had lost them in gambling. Those factors were viewed in light of his understanding the such activities were legal in Vietnam. He did not stop to check the situation in Australia.
As Dr Lennings reported, and the Magistrate noted, Mr Nguyen seems to have “wandered into this offence without considering the implications of his behaviour and on the basis of financial need, opportunity and the encouragement of his wife.”I would add that, from the evidence that Ms Tran gave, Mr Nguyen wandered into the whole move to Sydney without knowing that his wife had no friends in Sydney as she had claimed. Therefore, when she told him that she was with friends when, in fact, she was at the Casino, he had no reason to doubt her. He left her on her own while he tried to find suppliers and expand his customer base of his online business. Had Mr Nguyen known of his wife’s gambling, which had started in Melbourne before he came to Australia, he might have taken a very different course to ensure that she did not lose their savings and incur a $30,000 debt in a very short period of time.
That is not an excuse for what he ended up doing and there is no doubting that the Australian community expects non-citizens to obey the law. What it does do is to take Mr Nguyen’s offences from the category of being for self-enrichment of committed for reasons of greed to the category of being the actions of a man who is caught in a situation in which he does not know what to do. He loved his wife deeply and he had been drawn into the situation by his wife when they have gone to Sydney to be independent and she had incurred a $30,000 debt through gambling. The gambling was something for which Ms Tran has to, and does, take responsibility but the evidence she gave leads me to conclude that she was targeted by Nam as a person who was vulnerable and who could be manipulated into a position where she would be indebted to him and become obligated to him in order to work off the debt. Certainly, Nam paid some money to both Mr Nguyen and Ms Tran for each transaction but that does not take away from the fact that the underpinning reason that they worked for him was the unpaid loan.
Other considerations
Five other considerations, which must be taken into account in deciding whether to revoke the mandatory cancellation are summarised in paragraph 14(1) of Direction No. 79:
“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.”
A.International non-refoulement obligations
A.1 Direction No. 79: paragraph 14.1
A non-refoulement obligation is an obligation not to require a person to return to, or to deport or expel a person to, a place where he or she will be at risk of a specific type of harm. Non‑refoulement obligations arise under a variety of international conventions. Paragraph 14.1(1) states:
“A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.”
Mr Nguyen has not claimed that any non-refoulement obligation is owed to him and I find that there is none.
B. Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No. 79 states:
“… 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).”
B.1 Consideration
Mr Nguyen arrived in Australia at the end of October 2017 but has spent a total of about eighteen months of that time in the Australian community. He spent the first three months or so with Ms Tran’s family in Melbourne and then five months or so in Sydney. Most of the time between his arrest on 6 July 2018 and his sentencing on 8 April 2019 from his arrival until his arrest was spent in the community. During that time, he worked as a convenience store manager for about six months. He does not appear to have formed any friendships or close associations with others outside the family. Mr Nguyen has undertaken voluntary work at a Buddhist Temple.
C. Impact on Australian business interests
Paragraph 14.3(1) of Direction No. 79 states:
“Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
C.1 Consideration
The cancellation of Mr Nguyen’s PPV and the non-revocation of that cancellation would not have any particular or quantifiable effect on Australian business interests. I accept that he is a good worker, who is quick to learn and ready to turn his hand to various activities. He has shown initiative by starting his online business. That is a business that he can operate from Australia or from Vietnam where he started it. When the COVID-19 pandemic permits and it reopens, his grandfather-in-law has offered him a position in his restaurant should he be permitted to remain in Australia. Even though that would assist his grandfather-in-law, it makes no difference to Australian business interests as understood in paragraph 14.3(1).
D. Impact on victims
At paragraph 14.4(1), Direction No. 79 states:
“Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
D.1 Consideration
There are no victims of Mr Nguyen’s offences who can be named. The victims are at least one step removed from the crimes that generate the proceeds unless they are crimes of theft or the like and ownership of the proceeds can be traced. Generally, offences of dealing with the proceeds of crime are offences of facilitation of other crimes and it is more difficult to identify particular victims. In general terms, the victims are the members of the Australian community who expect all of its members, whether citizens or non-citizens, to comply with the law.
E. Extent of impediments if removed from Australia/not permitted to return
Direction No. 79 also states in paragraph 14.5(1) that:
“The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.”
E.1 Consideration
I find that Mr Nguyen’s father and step brother live in Vietnam but that the family to whom he is closest is his wife’s family in Australia. He regards them as his family and they regard him in the same way. Mr Nguyen’s love for his wife remains as strong as ever as does her love for him. She would be heartbroken if she could not live with her family as they would if her husband is permitted to remain in Australia. At the same time, she would return to Vietnam where she spent her childhood were he not permitted to remain in Australia. Both are fluent in Vietnamese and both are familiar with Vietnamese culture although Ms Tran has not lived there for a decade or so. I accept that they will find it difficult to resume their lives in Vietnam when it is known that Mr Nuygen has returned from Australia having been convicted of offences together with his wife.
CONCLUSION
On a superficial view, the decision that I should make in this case is easy. Here is a young man who came to Australia and became involved with unlawful activity within a few months of his arrival. He committed the crime for his own financial gain and did not plead guilty immediately. Certainly, he has close connections with his wife’s family in Australia but he has no connections with others outside the family unit and has not made any contribution to the community.
When the circumstances are looked at more closely, the decision is much harder because the facts are much more complex. Starting with the plea of not guilty followed by a plea of guilty, it is clear that Mr Nguyen did not understand the seriousness of what he was involving himself in. It was his understanding that such transactions were lawful in Vietnam. Although he began to have suspicions, I find that it did not cross his mind that what he had become involved in was viewed as seriously as it is in Australia. I do not know what legal advice he received regarding the charges but I note that he may not have been assisted in understanding the seriousness of his situation in Australia.
At the hearing, his solicitor tried to run an argument that he and Ms Tran would not have found themselves in their predicament had they been licensed under the Financial Transactions Reports Act 1988 (FTR Act). They worked for money remitters and there was no suggestion that those to whom they paid the money were not entitled to it. I think that his solicitor meant to refer to their not being financial services licensees under the Corporations Act 2001 with licences covering dealing in derivatives. Had they been, the cash deposits might be argued to be exempt cash transactions that were non-reportable cash transactions under the FTR Act. This was an argument that was completely at odds with the offence to which they had pleaded guilty and there was no evidence to support the submission that those to whom the money was paid were entitled to it.
What I have had the advantage of is sworn testimony by Mr Nguyen and Ms Tran regarding the circumstances of their offence. It may be said that they should have said all of this earlier but I do not think that the delay in any way takes away from the truth of what they say. Shame prevented Ms Tran from speaking about her gambling predilections, which are at the heart of the trouble they found themselves in. On her evidence she had chosen not to tell Mr Nguyen because he did not need to know and yet it was the thing that led to her being approached by Nam, whose actions led her to a situation where she was indebted to him. He did so by acting in a way that made Ms Tran think at first that she was playing for him because he was tired rather than that she had borrowed $5,000. Further amounts he gave her were clearly loans. Ms Tran is not blameless because she contacted Nam to borrow money that she said was for rent and food but was, in fact, for gambling in an attempt to reclaim her losses. Ms Tran’s gambling habits led her to behave in a way that left her obligated financially to Nam.
Both were without the support of their family whom they had left behind in Melbourne. They had wanted independence but did not know how, and were ill-equipped, to deal with the responsibilities that independence brings. Mr Nguyen had to care for his wife who had suffered a miscarriage and he was without funds. He did not immediately turn to his family for a loan or assistance. There is no evidence of what would have happened had they told Nam to wait for his money while they found other work and repaid him over time. They slipped into the role that he proposed for them even though they had their suspicions about its lawfulness.
Mr Nguyen had no previous criminal history in Vietnam and he has had no other incidents of misbehaviour in any context in Australia. That is consistent with his reputation as a respectful, caring and hardworking man. He has shown initiative with continuing his online business in Australia and would, if permitted to remain in Australia, continue to operate it. He has already demonstrated his attempts to expand it.
If Mr Nguyen were not permitted to remain in Australia, Ms Tran has said that she would follow him to Vietnam but that she would return to Australia to raise any children they might have together. Putting aside the practical difficulties of doing that without Mr Nguyen, I note that she was referred by her General Practitioner with concerns around depression and anxiety. Mr Shahab also identified similar concerns identifying high anxiety and moderate depression and he is providing therapy. What was not identified were her issues with gambling but, based on her evidence, I find that Ms Tran is well aware of her need to address that issue.
I also find that Mr Nguyen is well aware of his wife’s gambling. He still loves her deeply but he is no longer blind to her imperfections. His experiences over the last couple of years have opened his eyes to the need to think critically and carefully about every situation and neither to accept his wife’s word unquestioningly or to assume that the rules in one country are the rules in another. Certainly, Mr Nguyen has not met the Australian community’s expectations that he would not breach the law but he has done so in very particular circumstances. Even though he later thought the activities were suspicious, I find that Mr Nguyen took on the work initially to help his wife. He made those because of the obligations that his wife owed Nam and that she had incurred through gambling activities entirely unknown to him. The need to provide for their expenses was a consideration but, whether he received that money or not, the debt to Nam remained and had to be “worked off”. Although misguided, it was a decision consistent with the person Mr Nuguyen is. His wife had a debt and it had to be paid. That is consistent with his being a person respectful to others.
There is no reason to think that Mr Nguyen will reoffend either in this way or at all. He is genuinely remorseful and deeply ashamed of what has happened. He has the support of his wife’s family, whom he regards as his family, and they support him as a member of the family. When COVID-19 permits, there will be work for him at his grandfather-in-law’s restaurant and, in the meantime, there is every chance that he will be re-employed at his father-in-law’s place of work as it has a large online business as well as a physical presence in the market place. He is committed to making a contribution not only to his family but to the wider community.
Having regard to all of the factors in Direction No. 79 in light of the evidence, I have decided that the balance lies in revoking the cancellation of the PPV. Mr Nguyen did not set out to break Australia’s laws. Quite the contrary; he wanted to remain within them. The offences were committed in circumstances that will not arise again either because Ms Tran will seek treatment for her gambling or because, even if she does not, Mr Nguyen will not follow the same path. He has gained insight and maturity to match his other good qualities. Those considerations outweigh those that would favour my declining to revoke the cancellation.
DECISION
For the reasons I have given, I have decided to:
(1)set aside the decision dated 13 May 2020 refusing to revoke the decision dated 19 June 2019 to cancel Mr Nguyen’s Class UF Subclass 309 Partner (Provisional) Visa; and
(2)substitute a decision that the decision dated 19 June 2019 to cancel Mr Nguyen’s Class UF Subclass 309 Partner (Provisional) Visa is revoked.
| I certify that the preceding one hundred and thirty nine (139) paragraphs are a true copy of the reasons for the decision herein of Deputy President SA Forgie |
..............[sgd].......................................................
Associate
Date of decision: 4 August 2020
| Heard: Applicant’s Counsel: Applicant’s Migration Agent Respondent’s solicitor: | 23, 24 and 27 July 2020 Mr Greg Hughan Mr Bao Nhu Van Truong Mr Adam Ray |
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