Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 358
•15 February 2022
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 358 (15 February 2022)
Division:GENERAL DIVISION
File Number: 2021/9188
Re:Mr Van Chien Nguyen
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Member Andrew McLean Williams
Date:15 February 2022
Date of written reasons: 3 March 2022
Place:Brisbane
The reviewable decision of the Respondent, dated 24 November 2021, to not revoke the mandatory cancellation of the Applicant’s Partner (Residence) (Class BS) (Subclass 801) visa, pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), is affirmed.
........................[SGD]................................
Member Andrew McLean Williams
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of Partner (Residence) (Class BS) (Subclass 801) visa – where Applicant does not pass the character test – sentence of imprisonment exceeding twelve months – whether there is another reason to revoke the mandatory cancellation decision – consideration and application of Ministerial Direction No 90 – various drug-related and drink driving offences – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Khalil v Minister for Home Affairs [2019] FCAFC 151
Pattison v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953Secondary Materials
Direction No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL
)
)
No: 2021/9188
General Division
)
Re: Van Chien Nguyen
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
TRIBUNAL: Member Andrew McLean Williams
DATE: 15 February 2022
PLACE: Brisbane
DECISION:Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the Delegate of the Respondent, dated 24 November 2021, to not revoke the cancellation of the Applicant’s visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
..….......................[SGD]...............................
Member Andrew McLean Williams
REASONS FOR DECISION
Member Andrew McLean Williams
3 March 2022
introduction
On 15 February 2022, the Tribunal affirmed the decision not to revoke the mandatory cancellation of the Applicant’s visa, pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) (“the Act”) (see above).
In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs [2019] FCAFC 151 (“Khalil”), the Tribunal now publishes the Written Reasons for that decision. In Khalil, the Full Federal Court said:
41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271 273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required to give its reasons, oral or in writing, within a reasonable time of the decision.
…
48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…
[Underlining not in the original, yet inserted here, by the Tribunal]
On 11 July 2019, a Delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) mandatorily cancelled the Applicant’s Partner (Residence) (Class BS) (Subclass 801) visa (“the visa”) under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”), on the basis that he did not pass the character test.[1]
[1] Exhibit R1, Section 501 G Documents, G9, pages 55 to 61.
On 13 August 2019, the Applicant made representations to have the cancellation of his visa revoked under section 501CA of the Act (“the revocation request”).[2]
[2] Ibid, G10, pages 62 to 86.
On 25 January 2021, the Respondent invited the Applicant to comment on further information – namely, his National Criminal History Check and two sets of sentencing remarks relating to his recent criminal offending.[3]
[3] Ibid, G11, pages 87 to 90.
On 24 November 2021, the Respondent decided not to revoke the mandatory cancellation of the Applicant’s visa.[4] The Applicant subsequently applied for a review of that decision in the General Division of this Tribunal on 30 November 2021, within the nine-day statutory review period.[5] The Tribunal has jurisdiction to review that decision, pursuant to section 500(1)(ba) of the Act.
[4] Ibid, G2, pages 7 to 12.
[5] Ibid, G1, pages 1 to 6.
The hearing of this application for review took place over two days, 2 and 7 February 2022, respectively. At the hearing, the Tribunal heard oral evidence from the Applicant (via videoconferencing means), as well as from the following witnesses:
·Mr Quang Hoan (John) Dinh (the Applicant’s cousin);
·Ms Thi Duc Chu (the Applicant’s partner); and
·Mrs Thi Hao Nguyen (the Applicant’s aunt).
The Tribunal also considered the documentary evidence submitted by the Applicant and Respondent, detailed in the attached Exhibit Register, now marked as Annexure A to these reasons.
factual background and offending history
The Applicant is a thirty-year-old male citizen of Vietnam[6] who first arrived in Australia on 30 October 2009 on a Student (Class TU) (Subclass 573) visa, when aged eighteen. The Applicant was subsequently granted a temporary Partner visa, on 30 October 2021, and then a permanent Partner visa, on 23 April 2014. The Applicant’s parents are both described as having Vietnamese citizenship and are not Australian citizens.[7] They both live in Vietnam, along with the Applicant’s brother.[8] Since his first arrival in this country in October 2009, the Applicant has only left Australia on one occasion, for twenty days, in January 2011.[9]
[6] Ibid, G10, page 73.
[7] Ibid, page 74.
[8] Ibid, G7, page 46.
[9] Ibid, G17, page 105.
Upon initial arrival in Australia, the Applicant intended to study English.[10] He was financially and emotionally supported by his aunt, Ms Thi Hao Nguyen,[11] whose evidence is detailed later in these reasons for decision. The Applicant also has four cousins, all of whom live in Australian and who are Australian citizens, though their respective relationships with the Applicant have been somewhat estranged since his latest conviction.[12] The Applicant undertook (however did not complete for lack of funds), a Diploma in Information Technology at Central Queensland University. He has also worked as a manual labourer,[13] tiler,[14] chicken farmer,[15] and in meatpacking,[16] as well as other roles, the specific details of which the Applicant cannot recall.[17]
[10] Ibid, G3, page 22; page 31.
[11] Ibid, G10, page 64.
[12] Ibid; page 22.
[13] Ibid, G10, page 22; Ibid, G7, pages 46 to 47; page 51; Transcript (7 February), page 54, lines 40 to 47; page 55, lines 1.
[14] Exhibit R2, Supplementary Summons Documents, S81, page 240.
[15] Exhibit R1, Section 501 G Documents, G7, page 46.
[16] Exhibit R2, Supplementary Summons Documents, S89, page 318.
[17] Ibid; Exhibit R1, Section 501 G Documents, G7, page 64.
The Applicant was married in 2010 to his now ex-wife, Ms Nhan Thi Vuong.[18] This relationship was turbulent, with the Applicant suffering from gambling and financial problems which, in combination with his driving offences, contributed to the marriage breaking down.[19] The Applicant separated from Ms Vuong sometime in late 2016 – early 2017, and they were subsequently divorced, in 2018.[20] The Applicant then formed a de facto relationship with his current partner, Ms Thi Duc Chu, in about May or June, 2018.[21] This resulted in the birth of the Applicant’s daughter, “K”, in August 2019, at which time the Applicant was already imprisoned.[22] Neither the Applicant’s current de facto partner, nor his daughter, K, are Australian citizens.[23] Ms Thi Duc Chu is a Vietnamese national, and is presently in Australia on a temporary student visa. Other than for some brief visits whilst the Applicant was still in prison, the Applicant has had no physical contact with his daughter since her birth. Because he is unable to work and has no money, the Applicant provides no financial support for either of his partner, or their daughter. Instead, Ms Chu must provide what financial support she can to the Applicant, whilst he remains in immigration detention. The Applicant does speak with his partner and daughter regularly from immigration detention, by means of Facetime.
[18] Ibid, page 31.
[19] Ibid, G6, page 16; page 32; G7, page 47; page 51.
[20] Transcript (7 February 2022), page 41, lines 6 to 14.
[21] Ibid, page 20, line 18.
[22] Exhibit R1, Section 501 G Documents, G3, page 19; G7, page 47; Transcript (7 February 2022), page 34, line 9.
[23] Ibid, page 35, lines 9 to 16.
Offending History
The Applicant’s first conviction in Australia was for ‘Special category driver drive with special range PCA – 1st off’. The Police Facts Sheet records that on 20 December 2013, the Applicant returned a positive blood alcohol content (BAC) result of 0.039 after a Random Breath Test (over the 0.00 BAC requirement for Learner drivers).[24] The Applicant was originally sentenced to pay a $250 fine and was disqualified from driving for a period of three months’, on 10 February 2014, by the Fairfield Local Court.[25] However, an appeal against the severity of that sentence lodged by the Applicant was ultimately successful,[26] resulting in his being re-sentenced at the Paramatta District Court on 7 March 2014, with no conviction recorded. Instead, the Applicant was given a two-year Good Behaviour Bond, requiring that he notify the Court of any change in his address within two years, and strictly comply with all traffic rules and regulations.[27] In relation to the circumstances giving rise to this offence the Applicant stated that he was, “young and reckless, I actually didn’t think of the consequences. Just a little bit problems. So I had some headache, and I just did it without thinking clearly.”[28]
[24] Exhibit R2, Supplementary Summons Documents, S36, pages 72 to 73.
[25] Exhibit R1, Section 501 G Documents, G5, page 27.
[26] Exhibit R2, Supplementary Summons Documents, S32 to S33, pages 66 to 69.
[27] Exhibit R1, Section 501 G Documents, G5, page 27.
[28] Transcript (7 February 2022), page 21, lines 36 to 38.
The Applicant’s next criminal convictions stemmed from offences committed on 13 January 2017. The Police Fact Sheet details that the Applicant had consumed four beers at a club in Bankstown before, “going for a drive…[because] it was a hot night.” The Applicant was recorded as speeding in a residential area before losing control of the car that he was driving and crashing into five stationary vehicles, causing substantial damage to each of them. The crash also rendered the Applicant’s car inoperable, and he was eventually taken into custody after returning a positive result during a Roadside Breath Test. Police recorded the Applicant as being evasive when asked to provide his current residential address. Once at the Police Station, the Applicant returned a BAC of 0.159, such that his licence was immediately suspended and confiscated.[29] During cross-examination before the Tribunal in relation to this offence the Applicant stated that he, “[had] a long day at work from the flower farm, I was very, very tired. And then I heard some bad news from Vietnam and that caused me quite upset. Then I drank (five to six schooners) and then I took the car just drive around… and then I got caught…”.[30]
[29] Exhibit R2, Supplementary Summons Documents, S7, pages 13 to 16.
[30] Transcript (7 February), page 23, lines 24 to 29; page 24.
On 31 July 2017 the Applicant was convicted in the Fairfield Local Court of one count of ‘Negligent driving (no death or grievous bodily harm) and another of ‘Fail to notify Authority of change of address within 14 days’, as per the conditions of his previous Good Behaviour Bond. The former conviction resulted in a fine of $1,000, with the latter resulting in a $500 fine. The Applicant was later convicted in the same Court (after the matter was re-opened to correct a previous sentencing error[31]) of an offence of ‘Drive with high range PCA – 1st off’, on 3 October 2017. On this occasion the Applicant was fined $500, ordered to undertake 300 hours of community service, disqualified from driving for six months, and ordered to participate in an alcohol interlock program for 24 months.[32]
[31] Exhibit R2, Supplementary Summons Documents, S12, page 24.
[32] Ibid.
A ‘Pre-sentence report Sentencing options assessment’, dated 9 July 2018, then records that the Applicant, “…failed to attend two out of five scheduled community work days and has provided no explanation for his failure to attend… [the Applicant displays] a pattern of non-compliance with community based orders and remains unsuitable for a further community service order…”.[33] Despite his having received repeated verbal and written warnings,[34] the Applicant was noted as having not attended Community Corrections-ordered work days on a total of ten occasions, thus completing only 101 of the 300 total hours of community service. As such, New South Wales Community Corrections lodged an application to revoke the Applicant’s community service order in the Fairfield Local Court.[35] The Applicant’s unsuitability for a Community Service Order was again re-confirmed in a further Pre-sentence report, dated 22 August 2018.[36] Despite what is now recorded in the Applicant’s community corrections file, during his cross examination before the Tribunal the Applicant asserted that he had complied with the Order, that his Community Corrections Officer had miscalculated the hours he had worked, and that his failures to attend workdays were justified, as he had produced a medical certificate.[37]
[33] Ibid, page 27.
[34] Ibid, S82, page 241; S86, page 307; S87, page 308.
[35] Ibid, S88, pages 309 to 310.
[36] Ibid, S89, page 311.
[37] Transcript (7 February 2022), page 25, lines 33 to 47; page 26, lines 1 to 13.
On 5 September 2018, the Applicant was sentenced on a ‘call-up’ of his previous conviction for ‘Drive with high range PCA – 1st off’ after he breached his Community Service Order.[38] The Applicant was then convicted and re-sentenced to a term of seven months imprisonment, suspended upon his entering into an additional Good Behaviour Bond which required that the Applicant:[39]
… be of good behaviour.
… appear before the court if called upon to do so at any time during the term of bond.
… accept Community Corrections Service supervision for as long as considered necessary and obey all reasonable directions. for counselling, educational development or drug and alcohol rehabilitation and obey the directions for attendance at Drivers education programme.
… report to Community Corrections Service at Bankstown Community Corrections District Office within 48 hours
[38] Exhibit R1, Section 501 G Documents, G5, page 25.
[39] Exhibit R2, Supplementary Summons Documents, S2, pages 2 to 3.
The next of the Applicant’s convictions stems from conduct which had transpired in the late evening of 21 January 2013. The Applicant was not apprehended for these offences until he was identified by a police fingerprint match, in January 2017. The Statement of Agreed Facts records that:[40]
… as part of a [Police Strike Force] investigation, police obtained a search warrant for the location… there were no persons home at the time of execution. The premises was rented under private rental agreement in fraudulent details…the premises had been converted into a sophisticated hydroponic set up. There were 8 identified grow rooms with cannabis plants… the remaining rooms in the house…contained items commonly used in the cultivation of cannabis such as electrical transformers, electrical power boards and extraction fans… [An] illegal bypass had been placed in order to power the hydroponic equipment… [a total of] 331 cannabis plants… [with] a street value of $1,115,000 were seized and removed from the premises… a number of fingerprints were obtained from lamp shades and globes seized from the property… and forensically matched to the offender [the Applicant]…a warrant was subsequently issued… On 13 January 2017, the offender was stopped by police for unrelated matters. The arrest warrant was executed and he was charged with this offence... The offender attended the premises and assisted in setting up the hydroponic equipment… knowing the equipment was going to be used to cultivate a large commercial quantity of cannabis plants… The offender did not play a role in the commission of the principle offence and was not there as part of a joint criminal enterprise…
[Insertions not in the original, yet inserted here, by the Tribunal]
The Applicant’s apprehension on 13 January 2017 resulted in the Applicant being indicted on one count of ‘Cultivate prohibited plant>=large commercial quantity-cannabis-SI’.[41]
[40] Ibid, S25, pages 42 to 44.
[41] Ibid, S24, page 41; Exhibit R1, Section 501 G Documents, G2, page 27.
On 12 December 2018, the Applicant was convicted in the Campbelltown District Court and then sentenced by Her Honour Judge English to an eighteen-month Intensive Corrections Order (‘ICO’).
Her Honour’s sentencing remarks from 12 December 2018 detail a clear financial motivation for the Applicant’s offending. Her Honour stated that:[42]
He [the Applicant] says his offending related to his dire financial circumstances at the time. He was not earning enough to cover living expenses and loan repayments. He also had a gambling problem. He says he no longer has a gambling problem but he certainly owed money as a result of his addiction at the time of his offending
…
He considers that his gambling addiction led to the breakdown of his marriage. He used the monies earned from this illegal enterprise to reduce his gambling debts. His debt was $2000. He received $500 for his involvement in setting up the lights and the lampshades. He says he has paid off the remainder of the debt from legitimate means
…
This offender I find played a very limited role on the evidence. His role was to assist in the set-up of the cultivation and no more. There was no evidence to enable a finding to be made that he was a crop sitter or more. He is charged with aiding and abetting the set-up of the hydroponic cultivation. He obviously turned a blind eye to what he was doing, motivated by the need to make cash to repay his debts and to live. That said however, he was a necessary step in the process.
[Emphasis not in the original, yet included here, by the Tribunal]
[42] Exhibit R1, Section 501 G Documents, G6, pages 31 to 32; pages 34 to 35.
Under cross-examination before the Tribunal, the Applicant stated that he had merely transported and then assisted his friend in setting up the hydroponic equipment, in return for money, which would help him to pay off his gambling debts.[43] The Applicant further stated that he thereafter managed to stop gambling for a while, but then resumed playing the pokies in 2017,[44] which ultimately led to his next involvement in criminal activity, as now further detailed, immediately below.
[43] Transcript (7 February 2022), page 27, lines 1 to 9.
[44] Ibid, lines 30 to 35.
Whilst still serving the ICO imposed on 12 December 2018, the Applicant was further charged, pleaded guilty and was subsequently convicted on 7 October 2020 by the New South Wales District Court at Parramatta of the offences of ‘Knowingly Take Part in the Cultivation of a Prohibited Plant (Cannabis) by Enhanced Indoor Means, not less than a commercial quantity-SI’[45] and for a related charge of ‘Use/consume/waste etc electricity without authority-TI’.[46] Other lesser charged offences were subsequently withdrawn, in exchange for those pleas.[47]
[45] Exhibit R2, Supplementary Summons Documents, S61, page 132.
[46] Ibid, page 139.
[47] Ibid, pages 139 to 140; S52, page 104.
The Statement of Agreed Facts presented to the Court on the date of the Applicant’s sentencing records that:[48]
[48] Ibid, pages 148 to 160.
…On 25 March 2019, police were conducting surveillance…At about 11:55pm, police observed a black Peugeot vehicle… driven by the offender, Van Chien Nguyen… the offender then went inside the house… At about 3:00am on 26 March 2019, police… saw both males exit the front door of the house and enter the black Peugeot… As the offender attempted to reverse down the driveway, he was stopped by police… and was placed under arrest… police located an Apple iPhone and an empty packet of cigarettes… [as well as] a pair of blue disposable gloves… [which] appeared to be wet.
…
At about 7:00am on 26 March 2019, police executed a search warrant at the premises. As soon as police entered the house, they immediately noticed a strong odour of cannabis. They discovered the entire premises had been converted into a sophisticated hydroponic set up for the purpose of cultivating cannabis plants by enhanced indoor means. In total, police located five grow rooms containing 163 cannabis sativa plants of varying sizes. The plants were contained in black pots and were connected via an irrigation system… The cannabis plants were placed beneath large heat lights with metal lampshades, which were suspended from the ceiling using wire. The heat lamps were connected to electrical transformers with numerous cables running to power boxes and through the ceiling.
…
During the search, police also located the following
a. An opened can of ‘V’ energy drink was located on a bottom shelf in the kitchen…with two cigarette butts stuck inside the can (sic)…
b. On the floor of Room C (which contained 115 cannabis sativa plants), police located a blue disposable glove. The glove was inside out. The glove was also identical to the glove found in the offender’s pocket.
c. In Room A, police located a Mount Franklin water bottle
…
The estimated value of the stolen electricity used via the illegal bypass to power the hydroponic setup is approximately $14,764.68.
The exhibits seized by police were later sent for forensic analysis and fingerprint testing. The analysis revealed the following:
a. V energy drink: A swab was taken from the mouth area of the can. The DNA recovered had the same profile as the offender, Van Chien Nguyen. It is greater than 100 billion times more likely to obtain this profile if it originates from the offender, rather than if it originates from an unknown, unrelated individual in the Australian population.
b. Blue glove located in Room C: A swab was taken from the inside of the glove. The DNA recovered was a mixture that originates from at least two individuals. The offender could not be excluded as the major contributor to this mixture. Assuming there are two contributors, it is greater than 100 billion times more likely to obtain this profile if it originates from the offender, rather than if it originates from an unknown, unrelated individual in the Australian population.
c. Mount Franklin bottle: A swab was taken from the mouth area of the bottle. The DNA recovered had the same profile as the co-offender [redacted]. A fingerprint belonging to the co-offender was also located on the neck of the bottle.
…
The Apple iPhone located on the offender was also analysed by police… Based on cell tower information, police discovered the mobile service had pinged from cell towers in the [redacted] area on the night of 25 March 2019… [and] on 42 separate days between 1 February 2019 and 24 March 2019…
…
The offender pleads guilty on the basis he knowingly took part in the cultivation of 163 cannabis sativa plants by enhanced indoor means, by nurturing the plants in nutrient enriched water and applying an artificial source of heat and light. The offender’s role can be described as a crop sitter…
[Redactions and emphasis not in the original, yet inserted here, by the Tribunal]
On 7 October 2020, the Applicant was sentenced in the Paramatta District Court to 28 months imprisonment with a non-parole period of eighteen months, by His Honour Judge Hanley SC. In arriving at this sentence his Honour stated:[49]
[49] Exhibit R1, Section 501 G Documents, G7, pages 43 to 52.
… I am prepared to accept that he [the Applicant] played some role in the cultivation of the plants… but I do not accept his evidence he merely went there on one occasion to do a bit of tidying up. I am suspicious he had been there on far more occasions that the four he acknowledges in view of his telephone records… I propose to sentence him on the basis he had been there on at least four occasions and on the basis (agreed) that he was a “crop sitter”.
He claims he was to be paid $700 to repay a gambling debt, to get money to send to his family overseas to assist them and because he his de facto wife was expecting a child. I, again, am somewhat circumspect in relation to that being the extent of what he was to receive. Irrespective of quantifying the amount of money he was to be paid, I am satisfied he was motivated to commit the offence for financial reward.
There is no evidence he had any managerial or any agricultural skills, or contributed any money into setting up of the system or expected to share any of the profits… the offence and his role fall below the midrange for offences of this type…
…
The primary concern is that the offender was on conditional liberty, being an Intensive Correction Order imposed by her Honour Judge English approximately three months previously for him being involved in a similar criminal operation. On that occasion he was also sentenced on the basis he had had a gambling problem that resulted in him being persuaded to participate in that criminal offence and his role was limited to that of a “crop sitter”. He told her Honour he no longer had a gambling problem and yet it would appear on the evidence, I am expected to accept, that within three months he was again involved in this type of offending with one of the motivations being to offset gambling debts by receiving the minimal amount of money he says he was being paid.
It is extremely concerning he was committing an offence whilst he was on conditional liberty for a lenient sentence in relation to a similar offence and one based on the fact that her Honour was satisfied he had good prospects of rehabilitation and was unlikely to reoffend. There was, I am told, no condition attached to the Intensive Correction Order requiring him to receive any guidance, assistance or programs to address his gambling problem because he had established to her satisfaction he no longer had a gambling problem. He has breached that trust and certainly misled her, in my view, in relation to his prospects. He was also subject to a section 12 bond for a driving offence at the time.
…
I am not satisfied he is remorseful. I did not find his evidence convincing in any way in relation to demonstrating any remorse about committing the offence, particularly in light of it being committed such a short period of time after he had been sentenced for a similar offence… it certainly underlined to me the fact he attempted to minimise his offending, as I am satisfied he did throughout his sentencing hearing. It also demonstrated he had little insight in relation to the adverse impact this type of offending has upon the community
…
He claims he started gambling when he came to Australia after one or two years. He had not gambled much in Vietnam. He said he played the poker machines. This became a problem and he lost money and he says in 2018 he lost about $4,000 or $5,000 that was borrowed money…
He claims at the time of this offence he owed about $2,000 and was offered $700 to go to the property and clean it up. I have already indicated I do not accept that was the extent of his role and certainly it is not consistent with the evidence in the agreed facts…
He was cross-examined in relation to his work and gambling and I found his responses unconvincing. He said in cross-examination he had continued to gamble between 2016 and 2018. It would appear no debts were incurred in that regard by him as the offending her Honour sentenced him for her Honour had sentenced him, which necessitated him being involved in this offence to offset those debts. He claimed he had started gambling again in 2019. No explanation was given as to why he had.
…
At para 10 her Honour said, because there had been no reoffending for nearly two years since the earlier offence and five years since the substantive offence, being the cultivation offence, she found he had good prospects of rehabilitation and was unlikely to reoffend. We now know those expectations and assessment were misplaced and, in my view, she was misled by him. In view of the offending and the type of offending in such close proximity to being sentenced and giving certain undertakings to the Court, I am not satisfied I can make any positive findings that he has good prospects of rehabilitation and is unlikely to reoffend.
[Emphasis not in the original, yet inserted here, by the Tribunal]
During cross-examination before the Tribunal, the Applicant attributed this offending to, “stupidity” and the fact that he was, “young and careless back then”; going on to state, “but now I have a family, I have child, and I have future ahead, and I have to change – change my thinking, change the ways I behave, and learn from my past to become a good person, to pay back to the community, and to my loved ones, especially my little baby.”[50]
[50] Transcript (7 February 2022), page 30, lines 38 to 45.
There is no evidence before the Tribunal of the Applicant having been the subject of any adverse reporting whilst imprisoned, or subsequently, during his more latter confinement, in immigration detention. There is also no evidence before the Tribunal of the Applicant having undertaken any courses whilst incarcerated to deal with his admitted gambling issues.[51]
[51] Ibid, page 31, line 5.
The only evidence now before the Tribunal of the Applicant having undertaken any courses in the form of rehabilitation is a certificate indicating that the Applicant completed a short barista/coffee making course, that was conducted for inmates by New South Wales Corrections.[52]
Evidence of other witnesses
[52] Exhibit R1, Section 501 G Documents, G13, pages 96 to 97.
Mr Quang Hoan (John) Dinh – Applicant’s Cousin
Mr Dinh provided an undated, signed, written statement to the Tribunal[53] and gave oral evidence at the hearing consistent with its content.[54] In his statement, he describes the Applicant as a, “kind giving person by nature”, someone who is willing to lend emotional and moral support. He states that the Applicant went through a, “rough patch” and that his latest incarceration was the, “wake up call he needed.” He stated that the Applicant has told him that, “he plans to re-start life and find a way to raise a child and care for his wife… if he is given another chance.” Were the Applicant to be released, Mr Dinh and his mother would offer him accommodation, help him find a job; as well as provide him with the guidance and support he needs.
Ms Thi Duc Chu – Applicant’s Partner
[53] Exhibit A2, Applicant Witness Statements, pages 4 to 5.
[54] Transcript (7 February 2022), page 46.
Ms Chu provided an undated, signed, written statement to the Tribunal[55] and gave oral evidence at the hearing consistent with its content. In her statement, Ms Chu details the hardships she and her daughter, K, have suffered since the Applicant was incarcerated. She described the Applicant as a, “loving, caring and thoughtful husband” and stated that his offending was, “out of character” and that, “he has promised to make it up to me and my daughter.” In her oral evidence, Ms Chu stated that she remained in regular contact with the Applicant by telephone, but that it was not likely she would be able to visit him, were he to be removed to Vietnam.[56]
Mrs Thi Hao Nguyen – Applicant’s Aunt
[55] Exhibit A2, Applicant Witness Statements, page 1.
[56] Transcript (7 February 2022), page 49, lines 23 to 40.
Mrs Nguyen provided an undated, signed, written statement to the Tribunal[57] and gave oral evidence at the Tribunal hearing consistent with its content. In her statement, Mrs Nguyen blames the Applicant’s financial problems, as well as, the Applicant “getting mixed up with the wrong people… when he was still a young inexperienced person… [and he] was tempted by that fast life of crime and money.” Mrs Nguyen stated that the Applicant has, “learnt his lesson” and has personally reassured her that he will, “never do it … again.” Mrs Nguyen expressed her upset and disappointment at the Applicant’s offending, as well as her own regret for having not provided the Applicant with more guidance, in the past. Mrs Nguyen has also offered the Applicant accommodation, as well as financial and emotional support, were he to be released back into the community.
[57] Exhibit A2, Applicant Witness Statements, pages 2 to 3.
CONSIDERATION
In considering whether to exercise the discretion now conferred on the Tribunal in accordance with section 501CA(4)(b)(ii) of the Migration Act, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act by the Minister.
Accordingly, Direction No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (‘the Ministerial Direction’) must be applied.
The Ministerial Direction outlines a framework for decision-makers with respect to exercising discretion in accordance with section 501CA of the Migration Act. Paragraph 6 of the Ministerial Direction provides:
6. Exercising discretion
Informed by the principles in paragraph 5.2 above, a decision-maker must take into account the considerations identified in sections 8 & 9, where relevant to the decision.
Paragraph 7 of the Ministerial Direction provides that decision-makers must take into account the ‘Primary’ and ‘Other’ Considerations relevant to the individual case and that when applying the Primary and Other Considerations, “information and evidence from independent and authoritative sources should be given appropriate weight”.
Sub-paragraph 7(2) of the Ministerial Direction then provides that, “Primary considerations should generally be given greater weight than the other considerations”. Additionally, sub-paragraph 7(3) provides that, “One or more primary considerations may outweigh other primary considerations”.
The relevant Primary Considerations in the context of a revocation decision appear in Paragraph 8 of the Ministerial Direction:
(1)Protection of the Australian community from criminal or other serious conduct (‘Primary Consideration 1’);
(2)Whether the conduct engaged in constituted family violence (‘Primary Consideration 2’);
(3)The best interests of minor children in Australia (‘Primary Consideration 3’); and
(4)Expectations of the Australian community (‘Primary Consideration 4’).
The ‘Other Considerations’ which must also be taken into account are provided for in paragraph 9(1) of the Ministerial Direction:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
A number of principles are next set out in paragraph 5.2, which decision-makers must consider as part of the exercise of their discretion. These principles 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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious, that even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Primary Consideration 1 – Protection of the Australian community from criminal or other serious conduct
Paragraph 8.1(1) of the Ministerial Direction requires that decision-makers keep in mind that the Government is committed to protecting the Australian community from harm arising in consequence of criminal activity, or other serious conduct by non-citizens. It further states that entering or 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.
Paragraph 8.1(2) of the Ministerial Direction requires decision-makers to have consideration for the following requirements when determining the weight to be applied to Primary Consideration 1:
(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.
Paragraph 8.1.1 of the Ministerial Direction sets out the factors to which decision-makers must have regard when considering the nature and seriousness of the Applicant’s criminal offending, or other conduct, to date.
Sub-paragraph 8.1.1(a)(i), (ii), and (iii) of paragraph 8.1.1(1) of the Ministerial Direction directs decision-makers to have regard to (without limiting the range of conduct that may be considered very serious):
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed; and
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentenced imposed.
Paragraph 8.1.1(a) further states that offending or other conduct of this nature are viewed “very seriously” by the Australian Government and the Australian community. The Applicant in this matter has not engaged in any of the category of matters identified in subparagraph 8.1.1(a) of the Ministerial Direction.
Sub-paragraph 8.1.1(b)(i), (ii), (iii) and (iv) directs decision-makers to have regard to (without limiting the range of conduct that may be considered serious):
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)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;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c)); and
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197 A of the Act, which prohibits escape from immigration detention.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Ministerial Direction requires a decision-maker to give consideration to the sentence imposed by the Courts for a crime or crimes, with the exception of the crimes or conduct mentioned (relevantly) in sub-paragraph 8.1.1(1)(a)(ii) and (iii) (observing that sub-paragraph 8.1.1(1)(b)(i) is not relevant to the Applicant’s factual circumstances).
Sub-paragraph (d) of paragraph 8.1.1(1) of the Ministerial Direction requires a decision-maker to give consideration to the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Ministerial Direction requires a decision maker to give consideration to the cumulative effect of repeated offending, by the non-citizen.
Sub-paragraph (f) of paragraph 8.1.1 of the Ministerial Direction requires decision-makers to consider whether the non-citizen has provided false or misleading information to the Department, including by their not disclosing the fact of any prior criminal offending.
Sub-paragraph (g) of paragraph 8.1.1 of the Ministerial Direction requires that decision-makers consider 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, yet noting that the absence of a warning should not be considered to be a matter in the non-citizen’s favour.
(a) Nature and seriousness of the non-citizen’s conduct to date
The circumstances of the Applicant’s offending have been set out in preceding paragraphs of these reasons. During the Applicant’s sentencing in December 2018 for the initial (2013) drug offences, her Honour Judge English said, in part:[58]
The growing of cannabis by elaborate indoor hydroponic cultivation is a serious crime. It is a crime which is difficult to detect by the authorities but those who choose to take the risk and attempt to make large sums of money from such illegal activity must realise that when they are caught they will receive condign punishment, particularly when their activity is motivated by greed or a desire to make quick sums of money, whatever their motivation might be.
Neighbouring properties are put at risk when electricity is diverted or rerouted. Often it is done by untrained persons with a resultant risk of fire which can quickly spready to neighbouring premises. There is the theft of the electricity associated with the bypass or rerouting.
…
…Cannabis grown hydroponically is particularly addictive and can destroy the lives and minds of those who are sadly addicted, resulting in families being torn apart and a significant cost to the community, both socially and financially. Any penalty imposed must ensure that an offender is adequately punished and made accountable for the conduct, reflect the need for denunciation of the conduct and ensure that the offender and others are deterred from committing similar offences.
[58] Exhibit R1, Section 501 G Documents, G6, pages 33 to 34.
Despite having been convicted on 12 December 2018 for the 2013 drug cultivation offences and his being on an ICO that was not due to expire until 11 June 2020, the Applicant was again arrested on similar drug cultivation offences on 25 March 2019. When sentencing the Applicant for these subsequent similar offences, his Honour Judge Hanley SC said, in part:[59]
[59] Ibid, G7, pages 41 to 42; pages 44 to 45; page 48.
The primary concern is that the offender was on conditional liberty, being an Intensive Correction Order imposed by her Honour Judge English approximately three months previously for him being involved in a similar criminal operation. On that occasion he was also sentenced on the basis he had had a gambling problem that resulted in him being persuaded to participate in that criminal offence and his role was limited to that of a “crop sitter”. He told her Honour he no longer had a gambling problem and yet it would appear on the evidence, I am expected to accept, that within three months he was again involved in this type of offending with one of the motivations being to offset gambling debts by receiving the minimal amount of money he says he was being paid.
It is extremely concerning he was committing an offence whilst he was on conditional liberty for a lenient sentence in relation to a similar offence and one based on the fact that her Honour was satisfied he had good prospects of rehabilitation and was unlikely to reoffend. There was, I am told, no condition attached to the Intensive Correction Order requiring him to receive any guidance, assistance or programs to address his gambling problem because he had established to her satisfaction he no longer had a gambling problem. He has breached that trust and certainly misled her, in my view, in relation to his prospects.
…
I am not satisfied he is remorseful. I did not find his evidence convincing in any way in relation to demonstrating any remorse about committing the offence, particularly in light of it being committed such a short period of time after he had been sentenced for a similar offence. The evidence he gave in cross-examination by Ms Narayan when given the opportunity to address the broader scope of his criminal behaviour was not taken up by him and it certainly underlined to me the fact he attempted to minimise his offending, as I am satisfied he did throughout his sentencing hearing. It also demonstrated he had little insight in relation to the adverse impact this type of offending has upon the community.
…
The electrical bypass was examined. It was illegal. It was extremely dangerous, particularly in relation to the potential for fire and a danger to the surrounding houses. The electricity stolen was estimated at $14,764.68, which is not insubstantial.
…
There were 163 plants. The commercial quantity is 50 plants and the large commercial quantity is 250. This number of plants was substantially over the commercial quantity.
…
At para 10 her Honour said, because there had been no reoffending for nearly two years since the earlier offence and five years since the substantive offence, being the cultivation offence, she found he had good prospects of rehabilitation and was unlikely to reoffend. We now know those expectations and assessment were misplaced and, in my view, she was misled by him. In view of the offending and the type of offending in such close proximity to being sentenced and giving certain undertakings to the Court, I am not satisfied I can make any positive findings that he has good prospects of rehabilitation and is unlikely to reoffend.
The Tribunal finds that the Applicant’s role in the commercial cultivation of cannabis by elaborate, clandestine, hydroponic means must be considered very serious. It is a matter that is made even more serious by the fact that on the second occasion the Applicant was apprehended for an offence of this nature, he was already then subject to an ICO for a virtually identical offence, for which the Applicant had already been sentenced (and had leniency extended to him), only approximately three months previously. The Tribunal particularly notes the tenor of the sentencing remarks made by His Honour Judge Hanley SC when sentencing the Applicant for the second drug cultivation offence, wherein his Honour expressed that:
·The Applicant had shown little remorse;
·The Applicant had sought to minimise the extent of his offending;
·The Applicant had little insight in relation to the adverse impact this type of offending has on the community;
·The Applicant had previously misled the court on the occasion of his sentencing for prior offending for similar offences; and
·It was not possible to make any positive findings in relation to the Applicant’s prospects for rehabilitation, or to form a view that it was now unlikely that the Applicant would re-offend.
In addition to these highly concerning matters, the Applicant has also been convicted of serious driving offences on multiple occasions, each giving rise to further significant risks of harm the community.
The Tribunal further notes that the nature and seriousness of the Applicant’s offending is a matter that is now reflected by the objective fact of his imprisonment and is now such that concern for the need to protect the Australian community now weighs very heavily against revocation by the Tribunal of the mandatory visa cancellation decision.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Ministerial Direction specifies that, when considering the need to protect the Australian community from harm, decision-makers are required to hold in mind the Government’s view that the Australian community’s tolerance for any risk of future harm diminishes as the potential seriousness of that harm increases, and that some conduct and the harm that it would cause (if it were to be repeated), is so serious that any risk of repetition may be unacceptable.
Paragraph 8.1.2(2) of the Ministerial Direction requires a decision-maker to consider the following factors, cumulatively, when considering future risk to the Australian community that may be posed by the non-citizen:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) Information and evidence on the risk of the non-citizen re-offending; and
(ii)Evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Although the Applicant contends that he is remorseful, and that he has developed maturity and insight, particularly since the birth of his daughter, the Tribunal is not convinced of that, and has formed the view that the Applicant now expresses remorse only for his own present circumstances (i.e., the potential for deportation). The Tribunal is unconvinced that the Applicant is not at risk of reoffending, particularly in circumstances where there is no evidence of the Applicant having undertaken any form of rehabilitation to address his past problems with gambling addiction; and in circumstances where there is a demonstrated track record, both of the Applicant’s poor compliance with community supervision orders, and of his reoffending in highly similar circumstances very shortly after being convicted for the same offences.
Conclusion: Primary Consideration 1:
The Tribunal has had regard to the provisions of paragraphs 8.1.1 and 8.1.2 of the Ministerial Direction, as well as the principles outlined in paragraph 5.2, and finds that:
·The nature of the Applicant’s criminal offending and other conduct is to be viewed very seriously;
·If the Applicant were to engage in the type of criminal or other serious conduct which he has committed in the past, the nature of the harm to potential future victims is likely to be very serious; and
·There is an unacceptable likelihood of the Applicant re-offending.
In consideration of all the evidence and each of the relevant factors contained in the Ministerial Direction, the Tribunal finds that Primary Consideration 1 weighs very strongly against revocation.
Primary Consideration 2: Family violence committed by the Applicant
Sub-paragraph 8.2(1) of the Ministerial Direction requires decision-makers to consider acts of family violence committed by the Applicant, and stipulates that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
In this case, there is no evidence, nor any suggestion, of the Applicant having engaged in acts defined as family violence.
Conclusion: Primary Consideration 2
As there is no evidence before the Tribunal of the Applicant having engaged in acts of family violence, Primary Consideration 2 is given neutral weight.
Primary Consideration 3: The best interests of minor children in Australia
Sub-paragraph 8.3(1) of the Ministerial Direction requires a decision-maker to determine whether non-revocation is, or is not, in the best interests of a child who may be affected by the non-revocation of the decision to cancel the Applicant’s visa.
Sub-paragraph 8.3(2) of the Ministerial Direction provides that for their interests to be considered, the relevant child (or children) must be under eighteen years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made.
Sub-paragraph 8.3(4) of the Ministerial Direction provides a list of factors to be considered in determining the best interests of the abovementioned minor child (or children), which the Tribunal will, in turn, consider as it applies to the best interests of each relevant child of the Applicant.
Sub-paragraph 8.3(4)(a) of the Ministerial Direction requires decision-makers to consider the nature and duration of the relationship between the child and the Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including in circumstances wherein an existing Court order restricts contact).
Sub-paragraph 8.3(4)(b) of the Ministerial Direction requires decision-makers to consider the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns eighteen, and including any Court orders relating to parental access and care arrangements.
Sub-paragraph 8.3(4)(c) of the Ministerial Direction requires decision-makers to consider the impact of the Applicant’s prior conduct and any likely future conduct and whether that conduct has, or will have, a negative impact on the child.
Sub-paragraph 8.3(4)(d) of the Ministerial Direction requires decision-makers to consider the likely effect that any separation from the Applicant would have on the child/ren, taking into account the child's or non-citizen's ability to maintain contact in other ways.
Sub-paragraph 8.3(4)(e) of the Ministerial Direction requires decision-makers to consider whether there are other persons who already fulfil a parental role in relation to the child.
Sub-paragraph 8.3(4)(f) of the Ministerial Direction requires decision-makers to consider any known views of the child (with those views given due weight in accordance with the age and maturity of the child).
Sub-paragraph 8.3(4)(g) of the Ministerial Direction requires decision-makers to consider evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way whether physically, sexually or mentally.
Sub-paragraph 8.3(4)(h) of the Ministerial Direction requires decision makers to consider evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
In this case, there is one minor child, the Applicant’s infant daughter, K, who is identified as being impacted by the prospect of non-revocation of the Applicant’s visa cancellation.
In relation to Primary Consideration 3, the Applicant’s Counsel submits that:[60]
…The Applicant has expressed a will to care and build a close relationship and (sic) his daughter should he be allowed to remain in Australia. His family is the most important element of his life and he wishes to build upon that security and stability going forward.
56. The Applicant has submitted that he wishes to play a role in supporting his newborn daughter given his time away from his family in prison and immigration detention. The Applicant submitted a non-revocation decision would have a huge impact on his child who would not have a second parental/father-figure in her life, and they would be devastated if he was to be removed from Australia. The Applicant has had continual contact as much as possible by telephone with his child and wife whilst detained and with the Covid pandemic period in force.
57. As required by Direction 90, the Tribunal would treat the best interests of the Applicant’s affect child as a primary consideration in this context. The Delegate noted that in the Applicant’s Personal Circumstances Form that he did not indicate he had entered a de facto relationship since the end of this first marriage, nor did he indicate the birth of his child or provide corroborating evidence to that extent. It is submitted that these omissions to the Court in either his Personal Circumstances Form or in oral submission do not in any way diminish that it is clearly in the child’s best interests that their father, the Applicant, remain in Australia.
[60] Exhibit A1, Applicant Statement of Facts, Issues and Contentions, page 12, paragraphs 55 to 57.
The Tribunal also refers to the following exchange in closing oral submissions:[61]
MEMBER: Well, I think what it is you're trying to say, and you can correct me if I'm wrong, is you're saying that the best interests of minor children, and also the best interests of his spouse, are factors to which more or greater weight should now attach, and those factors, perhaps in conjunction with a couple of others, ought tip the balance in your client's favour.
MR TANG: Yes, the rehabilitative nature.
MEMBER: Yes.
MR TANG: The redemptive nature of his second marriage.
MEMBER: All right.
[61] Transcript (7 February 2022), page 63, lines 27 to 39.
No documentary evidence has been adduced before the Tribunal to conclusively show that the Applicant is the father of the child, K. Nonetheless, the Tribunal accepts that the best interests of K are to be served if the visa cancellation decision were to be revoked. Ultimately however, the Tribunal is only able to attribute quite limited weight to Primary Consideration 3, because of the following:
·K was born when the Applicant was already serving a term of actual imprisonment, and the Applicant has never resided with K at any time, since her birth;
·The Applicant has not provided any parental care, nor any financial support to K, at any stage during her life;
·K has never known the presence of the Applicant as a parental figure, at any stage. There is no evidence before the Tribunal of K having yet formed any attachment, or child-parent relationship with the Applicant.
·The Applicant has only had very limited physical contact with K. The Applicant has only seen K, in person, during limited visits when K was taken by her mother to visit the Applicant, in prison. The Applicant was thereafter removed from prison and immediately placed into immigration detention. In consequence of COVID-19 restrictions, the Applicant has had no physical contact whatsoever with K during his period in immigration detention and has only had contact with K by electronic means.
·K’s mother is a Vietnamese citizen, who is in Australia on a time-limited (student) visa. In these circumstances, it appears more probable on the available evidence that K will - as a Vietnamese minor who is entirely dependent on her mother – also return with her mother to Vietnam, at the conclusion of her mother’s studies.
Conclusion: Primary Consideration 3
The Tribunal determines that Primary Consideration 3 weighs in favour of revocation, yet the weight that can be attached to Primary Consideration 3 is limited.
Primary Consideration 4 – The Expectations of the Australian community
Paragraph 8.4(1) of the Ministerial Direction states that the Australian community expects non-citizens to obey Australian laws whilst in Australia and where non-citizens have engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community (as a norm) expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.4(2) of the Ministerial Direction states that the non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns of offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
Paragraph 8.4(2) of the Ministerial Direction further states that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas if they raise character concerns through conduct in Australia or elsewhere (regardless of whether the non-citizen poses a measurable risk of causing physical harm ), such as:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(4) of the Ministerial Direction states that this consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated within the relevant sub-paragraphs of the Direction, without independently assessing the community's expectations in the particular case.
As has been recognised by both Charlesworth J and Stewart J in FYBR v Minister for Home Affairs,[62] the expectations of the Australian Community (as articulated in paragraph 8.4 of the Ministerial Direction) must be accepted and is not a matter for the Tribunal to more latterly attempt to gainsay. In this instance, the Applicant has been convicted of serious drug offences, and serious drink driving offences, after already arriving in Australia as an adult. The fact that the Applicant was apprehended for significant drug cultivation offences and still engaged in similar drug offending shortly after having been sentenced (whilst also being in breach of conditions imposed on him by the Courts on that prior occasion) gives rise to considerable and obviously serious character concerns, particularly when viewed in the context of the critical sentencing remarks made in relation to the Applicant by His Honour Judge Handley SC, on 12 December 2018.
[62] [2019] FCAFC 185, at [68]; [92] to [93] (per Charlesworth J); [100] to [104] (per Stewart J); see also, Pattison v MICMSMA [2020] AATA 3953, at [156] to [160] (per DP Boyle).
Conclusion: Primary Consideration 4
Having considered all the relevant factors, the Tribunal is of the view that Primary Consideration 4 weighs very heavily against revocation.
Other Considerations
It is necessary for the Tribunal to look at the ‘Other’ Considerations listed at paragraph 9 of the Ministerial Direction. The Tribunal will therefore hereunder consider each of sub-paragraphs 9.1 to 9.4 of the Ministerial Direction.
9.1 International non-refoulement obligations
Paragraph 9.1 of the Ministerial Direction requires decision-makers to consider Australia’s international non-refoulement obligations.
There is no evidence or other material before the Tribunal in this case giving rise to any concerns relating to Australia’s international non-refoulment obligations, such that neutral weight is attached to this consideration by the Tribunal.
9.2 Extent of impediments if removed
Paragraph 9.2 of the Ministerial Direction directs decision-makers to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in terms of their re-establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
The Applicant was born in Vietnam, and remained there throughout his childhood and schooling, not arriving in Australia until after already having turned eighteen. The Applicant speaks fluent Vietnamese and will not face substantial language or cultural barriers if now required to return to Vietnam. The Applicant’s parents and brother also reside in Vietnam. There is no evidence before the Tribunal to suggest that the Applicant is in anything other than normal health for a person of his age. The Applicant will have access to the same level and extent of social, medical, and economic support in Vietnam as that which is generally available to other citizens in Vietnam.
The Tribunal accepts that the Applicant will face some inconvenience and hardship whilst seeking to re-establish himself in Vietnam, after his having spent more than the past twelve years living in Australia. Yet, the Tribunal concludes that the degree of hardship and inconvenience will not be insurmountable, and that the Applicant is likely to be able to overcome any difficulties after a short period. Whilst re-establishing himself in Vietnam, the Applicant is likely to be able to access support from both his parents and brother in Vietnam.
9.3 Impact on victims
Paragraph 9.3 of the Ministerial Direction requires decision-makers to take into account the impact of the decision not to revoke the Applicant’s visa, pursuant to section 501CA of the Migration Act, 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.
In this matter, there is no evidence or other information before the Tribunal in relation to the impact of a prospective decision not to revoke the Applicant’s visa pursuant to section 501CA on victims of the Applicant’s criminal behaviour. As such, neutral weight is attached by the Tribunal to this other consideration.
9.4. Links to the Australian community
Paragraph 9.4 of the Direction states that decision-makers must have regard to sub paragraphs 9.4.1 and 9.4.2 of the Direction, which considers the strength, nature and duration of ties of the Applicant to Australia, and any impact on Australian business interests.
9.4.1 Strength, nature and duration of ties to Australia
Sub-paragraph 9.4.1(1) of the Ministerial Direction requires decision-makers to consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
The Applicant has a partner and child in Australia – neither of these persons are Australian citizens, Australian permanent residents, or persons with a right to remain in Australia indefinitely, such that they do not fall for consideration under paragraph 9.4.1(1) of the Ministerial Direction. The Applicant does however also have an aunt and four cousins in Australia, each of whom are either Australian citizens, Australian permanent residents, or whom are otherwise persons who do have a right to remain in Australia indefinitely (although the evidence does suggest that the Applicant’s relationship with them has been fraught at times, and has included some periods of estrangement[63]). The Applicant’s aunt, and John, one of his cousins, have each now provided a letter in support of the Applicant.
[63] Exhibit R1, Section 501 G Documents, G3, page 22, paragraph 68.
The Tribunal has had regard to the impact of the decision regarding deportation of the Applicant on his family members in Australia and is of the view that the application of sub-paragraph 9.4.1(1) of the Direction does weigh in favour of revocation of the visa cancellation decision, yet determines that the amount of weight that can be attached to this consideration is limited, and does not, either by itself - or when considered in combination with other factors in favour of revocation of the mandatory visa cancellation decision - now outweigh those Primary Considerations that are in favour of non-revocation of the visa cancellation decision.
Sub-paragraph 9.4.1(2) of the Ministerial Direction requires a decision-maker to give consideration to the strength, nature and duration of any other ties that the non-citizen has to the Australian community, and in doing so a decision maker must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, nothing 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.
Sub-paragraph 9.4.1(2)(b) of the Ministerial Direction states that decision makers must have regard to the strength, duration, and nature of any family or social links the non-citizen may have with Australian citizens, Australian permanent residents, or people who have an indefinite right to remain in Australia.
The Applicant first arrived in Australia as an adult, aged eighteen years, and has since resided in Australia continuously. Throughout his time in this country, the Applicant has contributed positively to the Australian community, albeit in a modest way, with that contribution attributed on the basis of his periods engaged in either education, or gainful employment.
In applying sub-paragraph 9.4.1(2)(b) of the Ministerial Direction, the Tribunal is of the view that this attracts some, albeit only very limited, weight in favour of revocation of the visa cancellation decision.
Overall, in applying paragraph 9.4.1 of the Ministerial Direction to the factual circumstances of the Applicant, the Tribunal is of the view that this Other Consideration weighs in favour of revocation of the visa cancellation decision, yet determines that the amount of weight that can be attached to this consideration is limited, and does not - either by itself or when considered in combination with other factors in favour of revocation - outweigh those primary considerations that are in favour of non-revocation of the visa cancellation decision.
9.4.2 Impact on Australian business interests
Paragraph 9.4.2 of the Ministerial Direction requires decision-makers to consider the impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence, or any other information before the Tribunal referable to this Other Consideration, such that neutral weight is now attached to it by the Tribunal.
Summary: Other Considerations
The application of the ‘Other’ Considerations in the matter before the Tribunal can be summarised as follows:
(a) International non-refoulement obligations: not engaged – neutral weight;
(b)Extent of impediments if removed: a small measure of weight in favour of revocation;
(c) Impact on victims: neutral weight; and
(d) Links to the Australian community:
(i)Strength, nature, and duration of ties to Australia: a limited measure of weight in favour of revocation; and
(ii)Impact on Australian business interests: neutral weight.
Conclusion
The Tribunal is required to weight all the Considerations, in accordance with the Ministerial Direction:
·Primary Consideration 1: weighs very strongly against revocation
·Primary Consideration 2: is given neutral weight
·Primary Consideration 3: limited weight in favour of revocation
·Primary Consideration 4: weighs very heavily against revocation
·Extent of Impediments: small measure of weight in favour of revocation
·Links to the Australian Community: limited weight in favour of revocation
Application of the Ministerial Direction therefore favours the non-revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, I cannot exercise discretion in favour of the Applicant to revoke the mandatory cancellation of his visa.
DECISION
The reviewable decision of the Respondent, dated 24 November 2021, to not revoke the mandatory cancellation of the Applicant’s Partner (Residence) (Class BS) (Subclass 801) visa, pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), is affirmed.
I certify that the preceding 107 (one-hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Member Andrew McLean Williams
................[SGD]..................
Associate
Dated: 3 March 2022
Dates of hearing:
2nd and 7th February 2022
Applicant:
Counsel for the Applicant:
Mr Van Chien Nguyen
Mr Kevin Tang (Eighth Floor Wentworth Chambers)
Solicitor for the Respondent:
Ms Jennifer Strugnell (Minter Ellison)
ANNEXURE A – DRAFT EXHIBIT REGISTER
| Exhibit Number | Description of Exhibit | Party | Date of Document | Date of Receipt |
| R1 | Section 501 G Documents (pages 1 to 136) | R | Various dates | 9 December 2021 |
| R2 | Respondent's Supplementary Summons Documents - Tender Bundle (pages 1 to 334) | R | Various dates | 19 January 2022 |
| R3 | Respondent Statement of Facts, Issues and Contentions (pages 1 to 11) | R | 19 January 2022 | 19 January 2022 |
| A1 | Applicant Statement of Facts, Issues and Contentions (pages 1 to 19) | A | 28 January 2022 | 28 January 2022 |
| A2 | Applicant Witness Statements (pages 1 to 5) Re-filed 28 January 2022 by Quang Dinh | A | Undated | 28 January 2022 |
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Natural Justice
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Statutory Construction
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