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

[2020] AATA 132

Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 132 (7 February 2020)

Division:GENERAL DIVISION

File Number:          2019/7548

Re:Hiep The Nguyen

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:7 February 2020

Place:Melbourne

The Tribunal decides to affirm the reviewable decision.

............[sgd]............................................................

Senior Member D. J. Morris

Catchwords

MIGRATION – mandatory cancellation of Class BB Subclass 155 Resident Return (Permanent) visa – applicant is citizen of Vietnam – extensive history of offending – previous warning regarding immigration status – Direction No. 79 – primary considerations – other considerations – Direction No. 75 – time span and seriousness of offending – decision under review is affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 33A

Migration Act 1958 (Cth), ss 499, 501, 501CA

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Minister for Home Affairs v Omar [2019] FCAFC 188

Omar v Minister for Home Affairs [2019] FCA 279

Secondary Materials

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature on 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)

Convention relating to the Status of Refugees, opened for signature on 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol relating to the Status of Refugees, 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)

DFAT Country Information Brief – Vietnam – 13 December 2018 (Department of Foreign Affairs and Trade)

International Covenant on Civil and Political Rights, opened for signature on 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

Migration Act 1958 – Direction under s 499 – Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 32(2C(b) (commenced 7 September 2017)

Migration Act 1958 – Direction under s 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)

Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, adopted and proclaimed by UN General Assembly on 15 December 1989, A/RES/44/128 (entered into force 11 July 1991)

REASONS FOR DECISION

Senior Member D. J. Morris

7 February 2020

1. Mr Nguyen was born in Vietnam and is a citizen of that country. His birthdate is stated to be a day in March 1973, making him aged 46 at the time of this decision. He arrived in Australia in perilous circumstances in 1980, having embarked with others from Vietnam in a boat. They were picked up on the high seas by a sea freighter and deposited at Port Adelaide, South Australia. He was granted a Class BB Subclass 155 Five Year Resident Return (Permanent) visa. That visa was cancelled on 7 December 2017 under section 501(3A) of the Migration Act 1958 (Cth) (the Act). Mr Nguyen was invited to make representations to a delegate of the Respondent as to whether there was another reason why the mandatory cancellation of his visa should be revoked. He did so. On 14 November 2019 the delegate decided not to revoke the mandatory cancellation of the visa. It is this decision Mr Nguyen has brought to the Tribunal for review.

2. The hearing was held on 29 January 2020. Mr Nguyen represented himself, made submissions and gave evidence. He was cross-examined by Mr Christopher Orchard of Sparke Helmore Lawyers, representing the Respondent. Mr Nguyen called four other witnesses to give evidence in his support, his son (who will be called ‘XS’ in these reasons), his daughter (‘XD’), and two friends, Mr Lenny Vella and Ms Jessica Duncan. The last two witnesses gave evidence by telephone, by leave, under section 33A of the Administrative Appeals Tribunal Act 1975 (Cth).

3. The following documents were admitted into evidence and taken into account by the Tribunal.

   ·By the Respondent:

   oa volume of ‘G’ documents (GD) (Exhibit R1); and

   oa volume of supplementary ‘G’ documents (SG) (Exhibit R2). 

   ·By the Applicant:

   oa statement of the Applicant dated 23 January 2020 (Exhibit A1);

   oa statement of Ms Duncan (Exhibit A2);

   oa statement of Mr Vella, dated 23 January 2020 (Exhibit A3);

   oa statement of Han Khuc (Exhibit A4);

   oa further statement of the Applicant, dated 23 January 2020 (Exhibit A5);

   ofive statements of attainment, of various dates (Exhibit A6);

   oa certificate of an art prize won by the Applicant (Exhibit A7);

   omedical documents from International Health and Medical Services relating to the Applicant while in immigration detention (Exhibit A8);

   oa statement of XS, dated 16 January 2020 (Exhibit A9); and

   oa statement of XD, dated 16 January 2020 (Exhibit A10).

   The relevant legislative framework

4. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or the Minister’s delegate) must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of section 501(6)(ii) of the Act, and, under section 501(3A)(b) of the Act, the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory.

5. Section 501CA(4) of the Act provides that a decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period,  and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under section 501CA(4)(b)(ii) of the Act, there is another reason why the mandatory cancellation decision should be revoked. The Respondent accepted that Mr Nguyen had made representations within the prescribed period.

6. If the Tribunal finds that Mr Nguyen fails the character test, the sole issue before the Tribunal then becomes whether there is another reason why the original decision to cancel the visa should be revoked. In undertaking this task, the decision-maker should examine the factors for and against revoking the cancellation and if satisfied that the cancellation should be revoked, the Respondent must act on that view (see North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, at [38]).

   Evidence in relation to the character test

7. Before the Tribunal was a National Police Certificate (GD, pp 29-39) dated 15 June 2018.  This certificate records that Mr Nguyen was convicted by the District Court of South Australia on 26 April 2018 of the offence of Traffic (unknown) controlled drug in prescribed area – basic (two counts).   

8. At GD pp 40-49 were the sentencing remarks dated 26 April 2018 of Her Honour Judge Tracey of the District Court in relation to the Applicant and some co-accused.  The Judge recorded that Mr Nguyen had pleaded guilty to the offences referred to above and sentenced him to two years, nine months and 18 days’ imprisonment, fixing a non-parole period of one year and nine months.

9. At GD, p 118 was a departmental note dated 7 December 2017 (by an officer of the then Department of Immigration and Border Protection) stating that the writer had contacted the South Australian Department of Correctional Services that day and was advised that Mr Hiep The Nguyen was then serving a sentence on a full-time basis in Mobilong Prison in South Australia.

   Finding in relation to the character test

10. On the basis of this evidence, and because of the operation of section 501(7)(c) of the Act, the Tribunal finds that Mr Nguyen fails the character test in section 501(3A) of the Act.

11. The remaining task for the Tribunal is to determine whether there is ‘another reason’ why the mandatory cancellation of his visa should be revoked.

    Direction No. 79

12. Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act.  The Minister has made such a direction, Direction No. 79 (‘the Direction’). The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter.

13. Paragraph 6.1 of the Direction states, in part:

    6.1Objectives

    (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    …

    (3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

14. The Direction includes the following principles at paragraph 6.3:

    (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.

15. In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct,’ ‘The best interests of minor children in Australia,’ and ‘Expectations of the Australian community.’  Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations,’ ‘Strength, nature and duration of ties,’ ‘Impact on Australian business interests,’ ‘Impact on victims,’ and ‘Extent of impediments if removed.’

16. The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.

    The Applicant’s offending

17. In respect of the offending which formed the basis for the visa cancellation, the Sentencing Judge stated that Mr Nguyen was arrested in May 2017, refused bail and had been in custody until sentencing on 26 April 2018.

18. Her Honour stated (GD, pp 46-47):

    In relation to your offending you say you operated as a courier and were given a small amount of the drug for your own addiction.

    You are 44 years of age.  Up until the age of seven you and your family lived in Vietnam, hiding from communist forces.  However, your parents determined that you and your brother should attempt to escape, which you did.  You, your brother and uncle escaped by boat.  You travelled until you were picked up by a tanker and brought to Port Adelaide.  From that time you lived with your uncle who was consistently hostile towards you and your brother.  Neighbours reported his abuse of you to the authorities.  However, you were never there when they arrived and were never spoken to by them.

    Your counsel described your schooling as an absolute non-event.  You left school at about 15 and then took up work in factories.  You are in receipt of Centrelink benefits and have from time to time worked as a fruit picker.

    At the age of 17 you were introduced to a variety of drugs, in particular to heroin, and quickly became addicted. You have unsuccessfully tried to stop, finding it impossible to get away from your addiction.

    Your counsel submits that previous pre-sentence and psychological reports do not paint a glowing picture with respect to your prospects for rehabilitation.  You have two children.  You and your former partner, their mother, separated in 2003.  She passed away from a drug overdose in 2013.  Your children are with a relative of your former partner and you believe they are well cared for.

    You have an extensive offending history which includes drug-related offending.  You were convicted of trafficking in Heroin in Victoria in May and September 1999.  You have a number of drug possession, theft and breach of bail convictions.  You have breached court bonds in 1995, 1999, 2010 and 2016.

    The role of the courier in the drug trade is an extremely important one and both general and personal deterrence are important considerations in sentencing you.

    Were it not for your pleas, I would have sentenced you to four years imprisonment.  I reduce that to two years, nine months and 18 days.  I fix a non-parole period of one year and nine months.

    Given your history, the seriousness of this offending and the importance of both general and personal deterrence, there is no good reason to suspend the sentence.  Your history of offending, particularly as regards breaching bail and community-based orders, show your prospects for rehabilitation are poor.  There is a risk of reoffending and noncompliance with home detention orders such as it is not appropriate that you serve your sentence on home detention.

    Both the sentence and non-parole periods are to commence from 27 May 2017.

19. In terms of earlier offending, the police certificate records Mr Nguyen’s first court appearance was in June 1994 in Melbourne, for charges of Theft from motor vehicle (3 charges), Go equipped to steal/cheat, and Fail to answer Bail Granted.  No conviction was recorded and a three-month community based order was imposed, for him to perform 40 hours of unpaid community service.

20. Two months later, in August 1994, Mr Nguyen was back before the Court charged with Possess amphetamine.  That charge was adjourned without conviction.  In December 1994 he was before the Melbourne Magistrates’ Court charged with Theft from motor vehicle; Theft; Attempt obtain drug by false representation (2 charges); Induce pharmacist supply restricted substance; Handle/receive/retention stolen goods.  The Court imposed one day of imprisonment on each charge, concurrent.  This was Mr Nguyen’s first prison sentence.

21. Two months later, in February 1995, Mr Nguyen was convicted before the same Court of the offences of Handle/receive/retention stolen goods; Assault with weapon; Burglary (2 charges); Theft; Breach of the community based order imposed in June 1994; Theft from motor vehicle (3 charges); Go equipped to steal/cheat; Failure to answer Bail Granted.  He was sentenced to 48 days’ imprisonment on each charge, concurrent, and, in relation to the breach of the order, fined $500.

22. The remainder of the certificate paints a somewhat melancholy picture.  There were some 41 further appearances before the Court.  Mr Nguyen was convicted of a number of property crimes, including several counts of larceny, theft from motor vehicles, and theft of motor vehicles; driving offences, including driving while intoxicated; and offences relating to forging prescriptions and uttering forged prescriptions.

23. Mr Nguyen was also convicted by the County Court of Victoria in February 1996 of the offence of Armed robbery, for which he was sentenced to 15 months’ imprisonment.   There were also a number of convictions for crimes against the person: in March 1998 for Common assault on person other than family member; in May 1999 for Resist police or person assisting police (2 charges); and in November 1999 for Resist police or person assisting police (2 charges).

24. The certificate also includes, apart from the amphetamine charge referred to above, the following drug-related offences: in October 1995 a conviction for the offence of Use heroin; in May 1999 convictions for the offences of Traffick [sic] heroin; in October 1999 convictions for the offences of Drive under the influence of drug, Use other drug of dependence, Possess heroin, and Use heroin; in November 1999 a conviction for Traffick [sic] heroin; in June 2001 convictions for Possess drug of dependence (not named) (2 charges) and Drive under the influence of drug; in June 2001 a conviction for the offence of Use heroin; in October 2003 a conviction for the offence of Possess heroin; in March 2004 a conviction for the offence of Possess heroin; and the April 2018 offences referred to above.

25. In terms of failures to observe the orders of the Courts, Mr Nguyen has been convicted of offences of failing to comply with bail, breaching court-imposed bonds, driving while disqualified or suspended, failing to answer bail, and breaching community based orders or suspended sentenced orders in 1994, 1995 (on three occasions), 1999 (three occasions), 2001 (two occasions), 2003 (two occasions); 2004 (two occasions); 2005, 2008, 2010, 2011 (three occasions), 2016 and 2017.  In all, the certificate records more than 47 breaches dealt with by the Courts.

    The Applicant’s opening statement

26. Mr Nguyen told the Tribunal about his early life in Vietnam.  He said he was born in the north of the country, which was invaded, and his family were evicted from their village.  He said they had to live in the jungle.  He could not attend school or get medical treatment.  Aged seven, he said he and his parents tried to flee Vietnam.  He found himself in a boat with others at sea for over a week with no food and little water.

1. Mr Nguyen said they were picked up by a ship and deposited at Port Adelaide.  He went to live with an uncle already residing in Adelaide for about five years, but they did not get on and the Applicant said he faced violence and abuse from his uncle.  He moved out and then lived with his soccer coach, Mr Vella, from the age of 12 to 15.

2. Mr Nguyen said that Mr Vella and his wife and family fostered him, and his best memories were from his time living with them.

3. Aged 15, Mr Nguyen said he moved from Adelaide to Melbourne and lived with some older friends.  He said he started drinking and using heroin at the age of 17.  He said he did not know how to handle his emotions and turned to ‘self-medication’.  Mr Nguyen told the Tribunal it has taken him thirty years to beat his heroin addiction.  He submitted that his background has played a big role in what he has done.

4. Mr Nguyen said that, while in custody, he has been a well-behaved prisoner and detainee and has tried to improve himself and undertaken courses.  He said that he had only himself to blame for his conduct and has now reached out for help, and he hoped to continue engaging with supports if allowed to remain in Australia.

   The Applicant’s evidence

5. Mr Nguyen agreed with the Respondent’s representative that his most recent offending involved selling heroin and that he played the role as drug courier.  He said he accepts that heroin is a dangerous drug that causes harm. 

6. Mr Nguyen agreed with Mr Orchard’s suggestion to him that he has dealt in heroin throughout his adult life and that he had committed crimes of violence. He said he accepted all the contents of the National Police Certificate in the G documents and expressed remorse and regret for the victims of his criminal offending.

7. Mr Nguyen acknowledged that he had breached a number of community-based orders imposed by the Courts but also told the Tribunal that he had successfully completed a number, as well.  He agreed that he had breached a number of bail orders and other court orders.

8. Mr Nguyen was taken to a letter from the Department dated September 2013 (GD, p 109) which advised him that, after consideration, a delegate of the Minister had decided at that time not to cancel his visa under section 501 of the Act.  He was especially taken to the part of the letter in bold text which read:

   Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future.  Disregard of this warning will weigh heavily against you if your case is reconsidered.

9. Mr Nguyen said that he remembered receiving the letter and agreed that he nevertheless went on to re-offend. 

10. Mr Nguyen was referred to a South Australian Department for Correctional Services pre-sentence report dated 1 March 2017 which states (GD, p 79) that he had

    Completed detox at Glenside in December 2016 in an effort to stop illicit substance use.  Mr Nguyen had linked into counselling that he found helpful.

11. Mr Nguyen said that he remembered attending ‘one or two sessions’ of counselling, and agreed that he went on to re-offend.

12. Mr Nguyen was taken to submissions he made to the Department in 2013 in relation to consideration of cancelling his visa and agreed it would be fair to say that he had stated he would reform and stop taking drugs.

13. Mr Nguyen said that he did not continue with the counselling and did not have assistance with mental health issues he was facing.  Mr Nguyen told the Tribunal that it was “my fault I didn’t get proper help.  I am truly sorry.  I should have got help properly like I have now. Back in 2013 I was still clouded with taking drugs.”

14. The Applicant was asked about Judge Tracey’s comments about his history of non-compliance with Court orders and her remark that his prospects of rehabilitation are still poor.  He said that he has never been clean for this long before, has given clean urine tests while in detention, and felt very confident that he is now rehabilitated and will continue to keep off drugs, with the advice of his doctors.

15. Mr Nguyen agreed with Mr Orchard that he had periods of staying off drugs in the past which ‘worked for a time.’ He said he felt that this time was different and that by continuing on methadone treatment and seeing a mental health nurse he should be able to stay clean.

16. In answer to questions from the Tribunal, Mr Nguyen said that he had operations on both arms for carpal tunnel syndrome.  He said he occasionally still has difficulties with his arms: his hands go numb in cold weather and he cannot rest on his arms when asleep.  He told the Tribunal that the trouble with his wrists stopped him being able to undertake repetitive work.

17. He also told the Tribunal that he had been diagnosed with hepatitis B, C and D and that he takes Entecavir (an antiviral medication), which his medical advisers say he will have to take for the rest of his life.  Mr Nguyen said he had also had some dental extractions while in detention and was on the waiting list for a set of dentures. Mr Nguyen said the effect of his dental problems is that he cannot eat solid food and, as a result, his nutrition has suffered. 

18. Mr Nguyen told the Tribunal that his only travel out of Australia since arriving in 1980 was a visit to Vietnam in 2013.  He said it was the first time he had seen his father in around 30 years and he wanted his children to meet their paternal grandfather (their grandmother having already passed away in 2001).  Mr Nguyen said that his father has since died in 2017, so he was pleased his children got to meet their grandfather.

19. Mr Nguyen said that he has two siblings residing in Vietnam, a sister and a brother.  His sister lives in the southern part of the country with her family, and his brother has divorced and now also lives with her.  He said he knew that his sister and brother struggle financially now and that if he was returned to Vietnam he did not think they would be able to provide accommodation to him.

20. Mr Nguyen said that he was concerned that there might still be ‘warrants outstanding’ in relation to the manner in which he departed Vietnam.  He said that when he returned to Vietnam in 2013 he did not travel on a Vietnamese passport but instead used an Australian travel document which he applied for in Adelaide.  His children travelled on their Australian passports.

21. In terms of his age, Mr Nguyen said he did not really know his true date of birth.  He said that his uncle decided his date of birth when he arrived in Port Adelaide and he, himself, believed he was probably born in 1970 because a cousin was born that year that he grew up with.

22. Mr Nguyen said that he and his former partner had two children, XS in 2001 and XD in 2002.  He was living in Melbourne at the time and said that they wanted to live together ‘for the sake of the kids.’  Mr Nguyen said he subsequently moved out and rented his own flat nearby, and had the children almost every weekend.  Mr Nguyen said that his partner remarried and had another child of her own and his children stayed living with their mother and her new husband, but that he still maintained frequent interaction.

23. Mr Nguyen said he returned to Adelaide in 2007 because he wanted to make a fresh start.  He got a job within a week of returning and saved up and paid for his two children to fly over to stay with him during their school holidays.  He stayed with his cousin and the cousin’s wife and family.

24. Mr Nguyen said that his former partner died of a drug overdose in 2012.  After her death, he went to Melbourne and brought their two children back to live with him.

    The evidence of XS

25. The Applicant’s son, XS, gave evidence.  He said he has finished high school and was working, and also in the process of applying to join the Australian Army. 

26. XS said he last lived with his father four or five years ago.  He said that his father always ensured he and his sister were well provided for and he had enjoyed conventional family interactions with Mr Nguyen, for example playing soccer, table tennis and chess.

27. In terms of Mr Nguyen’s offending, XS said that he was young and living with his maternal grandmother in Melbourne at the time, and did not know all the details of his father’s interactions with the Courts.

28. XS said when he accompanied his father and sister to Vietnam in 2013 they visited their grandfather and other family members and saw the tourist sights, staying for about five weeks.

29. In answer to direct questions from the Tribunal, XS said that he had never ‘entirely’ discussed his father’s drug use with him, but had had ‘little arguments’ about it over the years.  He said that he felt his father had a more positive outlook than before in terms of embarking on a course to remain clean, ‘no ifs, no buts’.

    The evidence of XD

30. The Applicant’s daughter, XD, gave evidence.  She said her father had always put her and her brother before everything else.

31. XD said she saw her father every school holidays and it was her view that, in terms of his drug problems, he appeared overwhelmed with stress.  She said he did clean up in 2013 at the time he took her and XS to Vietnam and that it was a good family trip.

32. XD said she was finishing her last year of high school this year and if her father was to be returned to Vietnam she felt it would be a significant additional stress on her, because she did not think that she or her brother would be able to save up funds to visit him there.

    The evidence of Mr Lenny Vella

33. Mr Vella gave evidence by telephone.  He said that in 1984 he was coaching school students in soccer and tried to get involved in the lives of the young boys on the team, one of which was the Applicant.  He said that he found out Mr Nguyen was a refugee and that he had issues with his uncle and consequently no longer had accommodation.  Mr Vella said he discussed with his late wife taking Mr Nguyen in, which they did, and he lived with the family for around the next two years.

34. Mr Vella said he stayed in contact every so often with Mr Nguyen after he went to Melbourne but now wished he had stopped him going, because that was when the Applicant’s drug problem commenced.

35. Under cross-examination, Mr Vella said he was “95 per cent convinced” that Mr Nguyen is committed to get over his drug problem and “seems to mean it this time”.  He said that is the Applicant shows a new determination.

36. Mr Orchard referred Mr Vella to a letter he wrote to the Department in support of the Applicant in 2013 (GD, p 96) in which he wrote:

    I reconnected with Hiep again a couple of years ago and he has briefed me on his life, especially how he became involved in the drug scene and how it nearly ruined his life.  I am convinced he is determined to get over his drug problem, and while he is still not fully recovered, he is passionate about being clean and making a future for his children and himself.

37. Mr Vella acknowledged that Mr Nguyen went on, after this, to commit several further offences and said that the only thing he can say now is that the Applicant realises this is his ‘extreme, last chance’ and that he can see he can no longer ‘fool his kids’.

    The evidence of Ms Jessica Duncan

38. Ms Duncan, a friend of Mr Nguyen, gave evidence.  She told the Tribunal that she met him in 2011 through family friends in Melbourne and she frequently travelled to South Australia to visit family friends, and continued her friendship with the Applicant.  Ms Duncan said that when XS and XD came to Adelaide for school holidays, she would see them if she was also there.

39. Ms Duncan said she had spoken to Mr Nguyen about his heroin addiction and that she had some added understanding because of a family member who is also addicted.  She said that in her view Mr Nguyen has been in an environment where he might be inclined to relapse, but has resisted. She felt that his experiences in the last 3 years would deter him from resuming his drug habit.

40. Ms Duncan said that it was her view that Mr Nguyen’s time in immigration detention has been a huge wake-up call to him and that he had to step up and take account of his own actions. Ms Duncan said that Mr Nguyen deciding to engage with a mental health nurse was a huge part in him accepting that he is able to seek help when he needs it.

    CONSIDERATION OF THE DIRECTION

    Primary consideration – Protection of the Australian community (paragraph 13.1)

41. The Direction requires the Tribunal to consider the nature and seriousness of the non-citizen’s conduct to date, and the risk to the Australian community should the person commit further offences or engage in other serious conduct.

    Nature and seriousness of the conduct

42. The Respondent submitted that Mr Nguyen’s offending was serious.  He sold drugs to an undercover police officer in a controlled operation.  The sentencing judge said that Mr Nguyen’s role in terms of the group of other co-accused was important, and that he would have received a sentence of four years’ imprisonment but for his plea of guilt.

43. Mr Orchard said that Mr Nguyen has been convicted of some 200 offences between the years 1994 to 2018, including crimes of violence, and resisting police.  The Respondent drew the Tribunal’s attention to the fact that Mr Nguyen has been sentenced to many terms of imprisonment and has been involved in consistent, frequent and sustained offending.  Mr Orchard cited the Applicant’s history of failing to comply with orders imposed by the Courts.

44. The Tribunal must consider the sentence imposed by the court for crimes (paragraph 13.1.2(d)), the frequency of the person’s offending and any trend of increased seriousness (paragraph 13.1.2(e)), the cumulative effect of repeated offending (paragraph 13.1.2(f)), and whether the person has continued to re-offend since being formally warned of the consequences of further offending in terms of their migration status (paragraph 13.1.2(h)).

45. The Tribunal finds, on the evidence before it, that there has been frequent offending and an increased trend of seriousness.  This trend has continued in spite of the Courts in both Victoria and South Australia deploying a range of other tools available, such as suspended sentences, bonds, and short prison sentences, to seeming little effect in terms of Mr Nguyen’s consistent re-offending.  Most particularly, as he acknowledged in his oral evidence, he has a history of breaching orders of the Courts. He explained that this was owing to his drug addiction.  However, it seems that he was reckless in regard to the inevitable consequences that would flow.  While his evidence may be accepted that he has successfully completed some orders, the long list of those which he has breached is testament to a serious disregard for the authority of the courts.

46. In 2013 when the discretion was exercised not to cancel the visa and a warning was given to Mr Nguyen by the Department, the Tribunal notes that this was at a time when the Applicant was ‘clean’ and, on the evidence, was trying to get his life back together, including taking his children on a family holiday to Vietnam.  The certificate shows no offending from the beginning of 2012 to late in 2014.  However, the sad reality is that Mr Nguyen was back in Court in October 2014, and again in February 2016, September 2017 and April 2018, charged with a range of dishonesty offences, and also carrying an offensive weapon, three breaches of bail agreements and then the drug trafficking conviction in 2018.

47. The quantum of offending and the fact that some of it relates to crimes against the person, leads the Tribunal to the conclusion that the nature and seriousness of Mr Nguyen’s conduct weighs against revocation.

    Risk to the Australian community

48. In respect of the risk to the Australian community should Mr Nguyen re-offend, the Direction requires the Tribunal to consider the nature of the harm to individuals and the likelihood of the person engaging in further criminal conduct.

49. The Tribunal notes Mr Nguyen’s own admission that he has been frequently involved in drug dealing.  The Tribunal further notes Judge Tracey’s observation that his role in the heroin trafficking ring was important.  The illegal trade in physically addictive drugs such as heroin has a destructive impact on Australian society, and contributes to addiction and heroin-related deaths.  It is difficult to overestimate the societal and economic detriment visited on society by this trade, in terms of its direct link with criminal offending to fund the habit, the cost to the health system and the dislocation to, and effect on, children of drug-affected parents.  Accepting Mr Nguyen was not a principal player, he nonetheless was a willing and important participant in facilitating the dealing in heroin.

50. The Tribunal considers that there is little new evidence to disturb Judge Tracey’s conclusion in April 2018 that Mr Nguyen’s prospects for rehabilitation are poor.  He has made pledges in the past, before the Court on numerous occasions, and to the Department in 2013, that he would reform, but these did not lead to any lasting change in behaviour.  While Mr Nguyen has commenced a methadone programme and recently engaged with a mental health nurse while in immigration detention, I consider these positive signs are too recent to indicate other than good intentions, and must be compared with other such earlier attempts, in terms of the prospects of success.  Although Mr Nguyen attended a detoxification course in 2013 and ‘one or two’ sessions with a counsellor, on the facts this led to only a temporary cessation of returning to criminal conduct.

51. On the basis of the long history of offending and breaching orders and the Court’s conclusions on the prospects of rehabilitation referred to above, the Tribunal finds that there is a real and relatively high risk of Mr Nguyen re-offending. 

52. The Tribunal finds that this primary consideration weighs heavily against revoking the mandatory cancellation of the visa.

    Primary consideration – Best interests of minor children in Australia affected by the decision (paragraph 13.2)

53. The principal minor child relevant in this consideration is the Applicant’s daughter, XD, who is aged 17.  While the Respondent submitted that there were other persons who already fulfil a parental role in relation to XD, that is Mr Nguyen’s cousin and his wife, with whom XD has lived for some years, there was ample evidence before the Tribunal that XD has a good and positive relationship with her father.

54. There was no evidence before me that XD or her brother, XS, have ever been exposed to Mr Nguyen’s criminal offending or drug-taking, and indeed their own knowledge of that criminal behaviour seemed scant.  On the contrary there was evidence of him providing for them, interacting with them in a conventional, fatherly way and maintaining their relationships with other members of their wider family in both Australia and Vietnam.

55. The Direction reminds decision-makers to take into account the length of time until a minor child turns 18 in terms of a positive parental role.  The Respondent submitted that because the long periods of absence and limited contact with Mr Nguyen, and the fact that his offending had increased when he had made promises and had charge of both of his children, that ‘at its highest this consideration weights slightly in favour of revocation, but the Minister submits ‘neutrally’ because in six months’ time XD will turn 18.

56. The Tribunal also has a duty to take into account the best interests of any other minor child who may be relevant in this consideration.  In answer to direct questions Mr Nguyen said that his cousin has three children, one of whom is a minor, who came with his father to visit Mr Nguyen in prison.

57. Mr Nguyen said that his brother, who lives in Melbourne, has two teenage children whom the Applicant sees occasionally and his sister has an adult daughter.  There was little other information before the Tribunal on Mr Nguyen’s relationship with these three minor children, and it is noted that persons other than the Applicant play the principal parental roles in their lives.

1. On balance, especially given the oral evidence given by XD, and notwithstanding that she will turn 18 later in 2020, the Tribunal finds that this consideration weighs slightly in favour of revoking the mandatory cancellation of Mr Nguyen’s visa.

   Primary consideration – Expectations of the community (paragraph 13.3)

2. Paragraph 13.3(1) of the Direction reads:

   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 not to 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.

3. FYBR v Minister for Home Affairs [2019] FCAFC 185, provides significant guidance to decision-makers in how to approach this primary consideration. The Court was referring to the predecessor of the Direction, Direction No. 65, but the wording of the relevant paragraph in the current Direction is identical.

4. In FYBR, the majority (Charlesworth and Stewart JJ) held that this part of the Direction expresses a ‘norm.’ It is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be.  In this respect, the expectations are deemed – they are what the executive government has declared are its views in the Direction, not values that may be gauged by some other independent process. 

5. Stewart J (who agreed with the conclusions of Charlesworth J but wrote his own reasons) stated, at [100]:

   To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:

   .             non-citizens will obey Australian laws when in Australia;

   .it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere.

   .in a particular case, the refusal of the visa may be appropriate simply because of the nature of the character concerns or offences is such that they should not be granted a visa.

   Understood in this way, community expectations are simply, and informally, expressed as follows: “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.”

   (Emphasis added.)

6. His Honour went on to state (at [102]) that the character assessment, even through the prism of community expectations, may not be decisively against an Applicant, which is why the decision-maker must assess what is ‘appropriate’ in the particular circumstances.

7. In this matter, the Tribunal considers that the persistent breaches of the law, increasing in seriousness and including crimes of violence such as armed robbery and resisting police, added to the serious nature of trafficking in a malevolent drug such as heroin, strongly weigh against the Applicant.

8. The Tribunal finds, given the persistent and serious nature of the offending, that this primary consideration weighs heavily against revoking the mandatory cancellation of the visa.

   Other consideration – Non-refoulement obligations (paragraph 14.1)

9. The Direction states that Australia has international obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights and its Second Optional Protocol.  Those obligations are that Australia will not repatriate a non-citizen to a place where they will be at risk of a specific type of harm.  Under this other consideration, the Tribunal must not only consider Convention-related harm but also any claims made out relating to complementary protection, and obligations that may flow from such claims.

10. The Applicant’s written submissions, prepared on his behalf by an organisation then assisting him, submitted that, because Mr Nguyen has already been determined to be a refugee, it was ‘not necessary’ for him to make ‘claims which may give rise to international non-refoulement obligations’.  That is not a statement that the Tribunal accepts, because it superficially glosses over the distinction between a person who may be found to be owed protection, who is in one category, and a person who held, or holds, a refugee visa, who is in a second category. 

11. While, depending on the category, a refugee visa may require that the grantee be able to satisfy the issuer they were exposed to persecution at the time the visa is issued, a protection visa requires an acceptance of the international obligation that the person be protected by the Australian Government, on a more current, or organic, assessment.  That is why protection visas are significantly time-limited.  In any event, the visa Mr Nguyen held at the time it was cancelled, a Class BB Subclass 155 Five Year Resident Return (Permanent) visa, is not a refugee visa.

12. Last year in the Federal Court this part of the Direction was judicially considered by Mortimer J (at the first instance) in Omar v Minister for Home Affairs [2019] FCA 279, where Her Honour found that claims with a serious and substantive basis in fact and law that non-refoulement obligations may be engaged should be properly considered by a decision-maker. Her Honour’s decision was upheld by the Full Court in Minister for HomeAffairs v Omar [2019] FCAFC 188].

13. In his personal circumstances form (GD, p 107) Mr Nguyen wrote:

    I do not have concerns about being sent to South Vietnam.  My main concerns which scary me and frighten me is that I am the sole parent of my 2 children who live with me all the time.  They are of a young age and they rely on me for support, guidance and love as their mother passed away 2012.  They have emotional/psychological issues as a result of their mother dying and have counsellor.  My children really need me and I need them [all sic].

    (Emphasis added.)

14. Much of the above concern stated by Mr Nguyen relates to his ties with Australia, rather than international obligations.  However, Mr Nguyen also wrote (GD, p 67) “There may be outstanding warrants as I [fled] the country in 1980”.

15. The Tribunal pressed Mr Nguyen on this possibility, given that he left Vietnam in 1980 at the young age of 7 and returned as an adult with his family in 2013, and holidayed there for several weeks without eliciting any interest from the Vietnamese Government authorities. 

16. The Tribunal referred during the hearing to the DFAT Country Information Report – Vietnam (13 December 2018) which relevantly states, at paragraph 5.28:

    Conditions for Refugees

    Articles 120 and 121 of the Penal Code state that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is a criminal offence. …

17. And at paragraph 5.29:

    DFAT is unaware of any cases where these provisions have been used against failed asylum seekers returned tom Australia.  Returns to Vietnam are usually done on the understanding that the individuals in question will not face charges as a result of making an application for protection.  In 2016, a Memorandum of Understanding was signed between the Australian Department of Home Affairs and the MPS, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea.’

18. Mr Nguyen’s statement that there ‘may’ be outstanding warrants seems vague, and remains so after direct questioning and his agreement that he had no difficulty in travelling to Vietnam and returning to Australia in 2013.  While the Tribunal is not convinced that this statement, by itself, rises to the level of the phrase used by Mortimer J of providing a ‘serious and substantive basis in fact and in law’ for claims of international protection, I note that it is open to Mr Nguyen to make an application for a protection visa where he can expand on such claims and provide further and better evidence.  If he does so, that claim would be likely to be considered by a decision-maker taking into account a different ministerial direction made under section 499 of the Act, Direction No. 75, which provides that an applicant’s refugee and complementary protection claims must first be considered before considering any character or security concerns.

19. On balance, given the insufficiency of the evidence, I find that this consideration weighs neutrally in this assessment.

    Other consideration – Strength, nature and duration of ties (paragraph 14.2)

20. The Direction requires the Tribunal to consider how long a person has resided in Australia, including whether he or she arrived as a young child and the strength, nature and duration of any family or social links with Australian citizens and others entitled to permanently reside here.

21. In Mr Nguyen’s case, he first came to Australia in 1980, aged 7.  He has been here for the vast bulk of his life-span, and has two Australian citizen children.  He has a brother and a sister residing here, and a cousin and his wife who have taken XS and XD in and provided a home for them and at times, when he has not been in prison, for the Applicant.  Mr Nguyen also has a circle of friends in Australia, including two, Mr Vella and Ms Duncan, who provided written statements of support and oral evidence, and other friends whose statements of support were in the G documents.

22. While his employment history has been somewhat patchy, the Tribunal accepts Mr Nguyen has made some positive contribution when he held down jobs during periods when he was free from drugs, and has provided for his family.  The Tribunal also notes from Mr Vella’s evidence that Mr Nguyen also played competitive sport.

23. The Tribunal was impressed by the demeanour of both of the Applicant’s children, XS and XD.  They appear to be fine young people, who have done well at school in spite of the inevitable difficulties some of the conduct of their father has brought to them, as well as having the added burden of dealing with the tragic death of their mother from a drug overdose.

24. On balance, while Mr Nguyen’s offending commenced when he was aged just 21 and has covered the remainder of his adult life, the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa, because of his family here, and his long residency in this country.

    Other consideration – Impact on Australian business interests (paragraph 14.3)

25. This consideration requires a decision-maker to consider the impact on Australian business interests if a person’s visa cancellation is not revoked, noting that an employment link would only generally be given weight where non-revocation would significantly compromise the delivery of a major project or important service in Australia.  Mr Nguyen states that he has been employed for periods as a factory worker, store-person and food worker, and undertook a carpentry course (GD, p 66).  He told the Tribunal about working for a carpet retailer in Adelaide and how that work became difficult with his carpal tunnel syndrome.  However, there is no evidence that any of his employment positions would reach the level contemplated in this part of the Direction.

26. The Tribunal finds that there is no evidence that this consideration is engaged.

    Other consideration – Impact on victims (paragraph 14.4)

27. This consideration in the Direction is only relevant where there is information available to the decision-maker that a victim of a person’s offending has knowledge about immigration decisions affecting the person.  There is no such evidence before me and the Tribunal finds that this consideration is not engaged.

    Other consideration – Extent of impediments if removed (paragraph 14.5)

28. The Tribunal must consider the extent of impediments Mr Nguyen may face if removed from Australia to Vietnam in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of that country.  The Tribunal must take into account the person’s age and health, any substantial language or cultural barriers and any social, medical and/or economic support available to them in that country.

29. In the International Health and Medical Services clinical records before the Tribunal (Exhibit A8) there is evidence that Mr Nguyen has a diagnosis of hepatitis B and D and a former diagnosis of hepatitis C which the Applicant told the general practitioner had cleared.  There is also evidence of dental problems and the issue of spectacles, and that he was on a ‘weaning dose’ of methadone.

30. The Tribunal notes the evidence before it that Mr Nguyen has had carpal tunnel surgery in 2013 and that some of his symptoms have recurred, and that this led to his giving up repetitive work.

31. The Tribunal accepts that the public health services in Vietnam would not offer the same access to treatment as Mr Nguyen receives in Australia, and the Respondent conceded that in the hearing.  It may also be that the antiviral medication Mr Nguyen says he relies upon would be less available in Vietnam, but there was no evidence before the Tribunal about that.

32. Mr Nguyen said that his ability to write and read Vietnamese has deteriorated over time, and that his spoken Vietnamese had declined somewhat.  The Tribunal accepts that this may be a temporarily detrimental impediment, should he be repatriated.

33. In terms of persons who may be able to assist him, Mr Nguyen told the Tribunal that he had a brother and a sister in Vietnam but he doubted that they would be able to do much to help him.  While the Tribunal accepts this evidence as given, it does remain the case that he has kept in contact with them and that they would at least be points of contact for him if returned.

34. On balance, the Tribunal finds that this consideration weights slightly in favour of revoking the mandatory cancellation of the Applicant’s visa.

    Summary and conclusion

35. In this weighing exercise, the Tribunal has found two of the three primary considerations weigh against revoking the mandatory cancellation of the visa.  The primary consideration relating to the effect on minor children weighs in favour of the Applicant, but not as strongly as it otherwise might because, first, the principal minor child involved turns 18 in a few months, and the other minor relevant minor children have a less close relationship with him, albeit one where it is fair to assume they would want him to stay in Australia.

36. In terms of the other relevant considerations, one weighs neutrally, two are not engaged and two weigh in the Applicant’s favour, one weighing slightly in that direction.

37. Considering the matter as a whole and taking into account the specific circumstances of the case, as contemplated by paragraph 13(1) of the Direction, the Tribunal concludes that, in weighing the balance of the relevant considerations, because of the very long history of serious offending, the failure to make other than very temporary steps to reform his conduct after the visa warning in 2013 (which were not maintained), and the consistent breaches of orders of the Court, the primary considerations relating to the nature and seriousness of the conduct and the expectations of the Australian community which weigh against revoking the visa cancellation are in this case determinative.

38. The Tribunal finds that it is not satisfied that there is another reason under section 501CA(4)(b)(ii) of the Act that the original decision should be revoked, and so the discretion available is not enlivened.  The direct consequence is that the decision under review was the correct decision in law, and the preferable decision in terms of the discretionary power in the statute.

    DECISION

39. The Tribunal decides to affirm the reviewable decision.

I certify that the preceding  122 (one hundred and twenty-two) paragraphs are a true copy of the decision and reasons for decision herein of Senior Member D. J. Morris

…[sgd]………………………………………………
Associate
Dated: 7 February 2020

Date of hearing:	29 January 2020
The Applicant:	In person
123.    Advocate for the Respondent:	Mr Christopher Orchard
124.    Solicitors for the Respondent:	Sparke Helmore Lawyers