Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 4308
•22 November 2021
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4308 (22 November 2021)
Division:GENERAL DIVISION
File Number: 2021/6181
Re:Mr Van Hai Nguyen
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Brisbane
Date:22 November 2021
Place:Brisbane
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 16 August 2021, to refuse an application made by the Applicant to grant a Permanent Residence (Spouse Visa) (Class 801) visa.
...............[SGD].............................
Senior Member B. Pola
Catchwords
MIGRATION – application for a Permanent Residence (Spouse Visa) (Class 801) visa – visa refused unders 501(1) of the Migration Act 1958 – whether Tribunal is satisfied that the Applicant passes the character test – whether the Applicant would engage in criminal conduct identified in s 501(6)(d)(i) – consideration of Ministerial Direction No 90 – application of the character test – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – expectations of the Australian community – strength, nature and duration of ties to Australia – reviewable decision affirmed
Legislation
Migration Act 1958 (Cth)Cases
Minister for Immigration and Border Protection v Sabharwal [2018] FCAF 160
Sabharwal and Minister for Immigration and Border Protection [2018] FCA 10Secondary Materials
Direction No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member B. Pola
22 November 2021
INTRODUCTION AND BACKGROUND
1. This is an application for review of the decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (the ‘Respondent’) to refuse Mr Van Hai Nguyen (the ‘Applicant’) a Permanent Residence (Spouse Visa) (Class 801) visa (herein referred to as the ‘visa’), pursuant to section 501(1) of the Migration Act 1958 (Cth) (herein referred to as the ‘MigrationAct’).
2. The Applicant is a 31-year-old citizen of Vietnam. He arrived in Australia in late 2010 when he was 20 years of age, on a student visa[1]. The Applicant was granted a Partner Temporary (Class UK) (subclass 820) visa on the basis of a relationship with his now wife (Ms Jenny Thuy Trang Huynh), whom he married in 2013, and remains married to.
[1] Exhibit R1, Section 501 G Documents, G13, page 79; Exhibit R3, Respondent Statement of Facts, Issues and Contentions, page 1, paragraph 5.
3. On 13 May 2021, a delegate of the Minister wrote to the Applicant providing him with a Notice of Intention to Consider Refusal, pursuant to section 501(1) of the Migration Act, on the basis that the Applicant did not pass the character test, with respect to section 501(6)(d)(i) of the Migration Act[2].
[2] Ibid, G7, pages 31 to 35.
4. On 16 August 2021, a delegate of the Respondent refused to grant the Applicant a visa on the basis that the delegate was of the view the Applicant did not pass the character test, “… by virtue of subsection 501(6)(d)(i) [of the Migration Act] with reference to subsection 501(7)(c) of the [Migration] Act…”[3]. The Tribunal notes this decision was sent to the Applicant by way of letter on 30 August 2021[4].
[3] Ibid, G4, page 17; G5, page 18, paragraph 8.
[4] Ibid, G3, pages 10 to 12.
5. The Applicant lodged an application with the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’) on 2 September 2021 seeking a review of the abovementioned decision not to revoke the cancellation of his visa, within the required time frame[5].
[5] Ibid, G2, pages 3 to 9. For the Tribunal to have jurisdiction to review the decision, the Applicant
must have lodged the application for review with the Tribunal within nine days after the day on which he or
she received notification of the decision. See Migration Act 1958 (Cth), section 500(6B).
6. A review of the Applicant’s criminal history reveals two criminal convictions, neither of which carry a term of actual imprisonment with respect to sentencing, the Tribunal refers to[6]:
(a)a conviction, on 26 May 2020 before the Paramatta District Court, for the offence of take part enhanced indoor cultivate cannabis commercial – SI. The Applicant received a non-custodial sentence of a community corrections order, operational for two years, which is due to conclude on 26 May 2022; and
(b)a conviction on 25 May 2018 before the Downing Centre District Court for the offence of supply prohibited drug > indict. Quantity (not cannabis) – SI, with the Applicant receiving a non-custodial sentence of an intensive corrections order, operational for ten months, which concluded on 24 March 2019.
[6] Ibid, G6, pages 29 to 30.
7. With respect to the delegate’s decision, “…with reference to subsection 501(7)(c) of the Migration Act…”, section 501(7)(c) of the Migration Act stipulates that a person is considered to have a substantial criminal record if they have, "been sentenced to a term of imprisonment of 12 months or more".
8. The Tribunal is of the view that the Applicant’s criminal history does not enliven the application of section 501(7)(c) of the Migration Act, as he has not received a sentence to a term of actual imprisonment[7] for either of his criminal convictions and is therefore not considered to have a substantial criminal record.
[7] “Imprisonment” is defined as: any form of punitive detention in a facility or institution. See Migration Act 1958 (Cth), section 501(12).
9. This point was conceded by the Respondent in submissions to the Tribunal[8]:
…The Minister accepts that the applicant does not have a substantial criminal record as provided by paragraph 501(7)(c) and the delegate's observations in this respect were erroneous. Notwithstanding, the Minister contends it was open to the delegate to find that the Applicant did not pass the character test due to the operation of subparagraph 501(6)(d)(i) of the Act…
[8] Exhibit R3, Respondent Statement of Facts, Issues and Contentions, page 5, paragraph 23.
10. The application was heard in Brisbane on 2 November 2021, with the Applicant represented by Mr Ben Doupe (Counsel), and Mr Thahn Nguyen (Solis Lawyers). The Respondent was represented by Ms Charlotte Saunders from Minter Ellison. All parties appeared via video conferencing facilities, with the Tribunal hearing evidence from the Applicant and the witnesses called by the Applicant (detailed below), as well as oral submissions from the Applicant’s and Respondent’s representatives. Additionally, the Tribunal refers to submitted evidence, as outlined in the Exhibit Register in Annexure 1 of these reasons. The Applicant and Respondent’s representatives filed written closing submissions, which were both received by the Tribunal on 3 November 2021.
11. The Tribunal heard evidence from the following witnesses called by the Applicant, both of whom provided written statements in support of the Applicant and appeared by video conferencing facilities:
(a)Mrs Thuy Trang (Jenny) Huynh (Applicant’s wife)[9]; and
(b)Ms Thi Be Hanh Nguyen (Applicant’s younger sister)[10].
[9] Exhibit A5, Applicant Statement of Facts, Issues and Contentions, pages 9 and 10.
[10] Ibid, pages 11 to 14; Exhibit R1, Section 501 G Documents, G18, pages 92 to 93.
12. The Tribunal notes the Applicant had intended to call a further three witnesses before the Tribunal: Ms Thi Be Hai Nguyen (the Applicant’s elder sister), Ms Thuy Trang Ta (a friend of the Applicant), and Ms Thanh Thanh Dang (another friend of the Applicant). Towards the conclusion of the hearing, the Respondent indicated they did not intend on cross-examining these three witnesses, and the Applicant’s representative was content not to call the witnesses to give evidence on the basis that their written statements had been provided to and accepted by the Tribunal[11].
[11] Transcript (2 November 2021), page 71, lines 21 to 42.
ISSUES
13. The decision to refuse the Applicant’s visa application was done so on the basis that the Respondent’s delegate was not satisfied that the Applicant passed the character test, with reference to section 501(6)(d)(i) of the Migration Act.
14. After considering the information relating to the Applicant’s visa application, the Respondent’s delegate decided to exercise the discretion in section 501(1) of the Migration Act to refuse to grant the Permanent Residence (Spouse Visa) (Class 801) visa.
15. The issues for the Tribunal to consider in relation to this application are therefore:
(a)whether the Applicant passes the character test, as defined in section 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the discretion in section 501(1) of the Migration Act should be exercised to refuse to grant the Applicant a Permanent Residence (Spouse Visa) (Class 801) visa[12].
[12] The Tribunal is bound by section 499(2A) of the Migration Act 1958 (Cth) to comply with directions made by the Minister under the Migration Act. Direction No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA must be applied. The Direction outlines a framework for decision makers with respect to exercising discretion in accordance with section 501(1) of the Migration Act 1958 (Cth). On 15 April 2021, the former applicable direction, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction No. 90 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
Overview of the Applicant’s criminal history
16. The Applicant’s criminal history can be gleaned from the Section 501 G‑Documents[13], in addition to documents produced under summons[14] comprising:
[13] Exhibit R1.
[14] Exhibit R2.
(a) The Applicant’s criminal history in Australia which appears in a document entitled, ‘Nationally Coordinated History Check Results’, dated 6 May 2021[15];
(b)Crown sentence summary with respect to the Applicant’s offence committed in May 2019[16];
(c)Summary of the Applicant’s submissions in the matter of R v Van Nguyen, including Judicial Information and Research with respect to the Applicant’s offence committed in May 2019[17];
(d)Pre-sentencing psychological report, dated 11 May 2020, by Mr Bradley Jones, Forensic Psychologist[18];
(e)International movement records of the Applicant from the Department of Home Affairs, as of 30 March 2021, including incoming passenger cards[19];
(f)Agreed facts, dated 25 October 2017, in R v Van Nguyen regarding the Applicant’s first offence, committed in 2016[20];
(g)Pre-sentencing psychological report, dated 3 April 2018, by Dr Minh Nguyen-Hoan, Psychologist[21];
(h)Documents produced by the Department of Communities and Justice, sentencing assessment report, dated 18 May 2020[22];
(i)Summonsed reports by New South Wales police of various dates[23]; and
(j)Commonwealth Department of Health National Drug Strategy report (2017 to 2026)[24].
[15] Exhibit R1, Section 501 G Documents, G6, pages 29 to 30.
[16] Ibid, G9, pages 40 to 54.
[17] Ibid, G10, pages 55 to 66.
[18] Ibid, G12, pages 67 to 77.
[19] Ibid, G13, pages 78 to 88.
[20] Exhibit R2, Respondent’s Summonsed Material, S1, pages 1 to 2.
[21] Ibid, S4, pages 9 to 16.
[22] Ibid, S5, pages 17 to 20.
[23] Ibid, S6, pages 21 to 24.
[24] Ibid, S7, pages 25 to 80.
17. The Tribunal will provide an overview of the Applicant’s criminal history, and the evidence he gave during the hearing when questioned about his criminal convictions.
First conviction – committed in September 2016, convicted in May 2018
18. The Tribunal has before it detailed information with respect to the Applicant’s conviction for attempting to smuggle approximately $2,000 worth of, “3,4-methylenedioxy-methylamphetamine” (with the street name, ’MDMA’) into a music festival on 17 September 2016[25]. The agreed statement of facts with respect to this conviction states that the Applicant sought to walk towards the front gate of the music festival and was approached by drug detection dogs. He was subsequently pulled aside by New South Wales (herein referred to as ’NSW’) police officers where a search was conducted[26].
[25] The Tribunal notes the agreed statement of facts incorrectly refers to this offence occurring on
17 September 2017, when it was in fact 17 September 2016 (as detailed in a New South Wales police
report at Exhibit R2, Respondent’s Summonsed Material, S6, page 24).
[26] Exhibit R2, Respondent’s Summonsed Material, S1, pages 1 to 2.
19. During the search, NSW police located a condom containing capsules, double wrapped, inside a plastic bag located inside the Applicant’s underpants. When the Applicant and his bag was searched, he was found with $900 in cash and three mobile phones (an iPhone, a Nokia, and a Samsung), in addition to two sim cards and a sim removal pin.
20. The Applicant was arrested by police and taken to a local NSW police station for questioning. The Applicant was recorded as telling the NSW police the following[27]:
… In summary, the offender said that he and some friends were outside the entrance gates where they were waiting for a friend to arrive. As they were doing this an unknown Asian male approached the offender and given him a package to take inside. The unknown Asian male said that he would pay him $500 in cash once the package had been delivered to him inside the venue. The unknown male told him to meet him at the main stage. The offender told police that the unknown male did not identify himself and did not provide him with his phone number…
[27] Ibid, paragraph 6.
21. The agreed facts state that when the Applicant was questioned as to what the content of the package was, he told NSW police at the music festival, “… he said that it was MDMA and that they were given to him…”[28].
[28] Ibid, paragraph 5.
22. The agreed facts then go on to state that after the Applicant had been taken back to a local NSW police station for questioning, he told NSW police that he did not know what was inside the package, only that it was a, “bad thing”. He then went on to say that he had guessed the package contained MDMA, with, “about a hundred” capsules, and that he assumed the value of the prohibited drugs to be worth, “about $2,000”[29].
[29] Ibid, paragraph 7.
23. When the Applicant was asked by police what he had intended to do with the prohibited drugs when he was inside the music festival, the agreed facts state the Applicant had told them, “maybe use them or his friends. I don’t know”[30].
[30] Ibid, paragraph 8.
24. The agreed facts then go onto state the Applicant had denied attending the music festival for the purpose of selling drugs. He further denied that he was intending to share the drugs with his friends, or that he and his friends had collectively purchased the drugs for the purpose of sharing with each other[31].
[31] Ibid, paragraph 9.
25. The agreed facts then state that NSW police analysed and translated the messages in the Applicant’s Nokia and iPhone, which were in Vietnamese (the Applicant had claimed that the Samsung belonged to a friend). The translated text messages indicated the Applicant was involved in buying and selling items, however it was equivocal as to what those items were[32].
[32] Ibid, paragraph 11.
26. During the hearing, the Applicant was questioned as to facts of his first conviction. The Tribunal summarises the Applicant’s oral evidence below:
(a)The Applicant conceded that at the moment he was asked to put the package of drugs in his underwear he was not thinking. Instead, he was simply thinking about, “getting paid $500 to take this inside and then yes, I just did it”[33].
(b)With respect to the Applicant already having $900 cash on him when he was searched by NSW police, the Applicant claimed that he was paid his weekly salary in cash (approximately $700 to $750, in addition to having some existing cash in his wallet at the time), but that he had run out of time to go to an automatic teller machine to deposit his salary[34].
(c)The Applicant stated that he had two personal mobile phones as he used one of them to call his parents who were living in Vietnam. He further said that it was easier for him to use multiple prepaid sim cards to call his parents, as this was less expensive than the existing phone contract he had with his carrier at the time[35]..
(d)The Applicant claimed the text messages discovered on one of these mobiles by NSW police regarding his arranging for the buying and selling of items related to the company the Applicant was working for at the time which bought and sold t-shirts. The Applicant claimed he was also printing and selling t-shirts from this company, “… sometime I’m printing t-shirt and then I’m selling t-shirt…”[36].
(e)The Applicant was questioned by the Tribunal as to how he knew that the drugs he had agreed to take into the music festival were specifically MDMA, as well as correctly guessing the quantity at, “about a hundred” capsules, and correctly guessing the value of the drugs at, “about $2,000”[37]. The Applicant stated that he had guessed the drugs were MDMA because, “…I’m watching, you know, on the news and I know some people get caught and they showing that’s the MDMA, so I’m guessing… I watch the new[s], music festival, they always related to that kinds of drug”[38]. With respect to the quantity, the Applicant stated this was a guess and that he determined the street value because, “… I watch the new[s] and then they, you know, the reporter say it like what the street value is…”[39].
[33] Transcript (2 November 2021), page 19, lines 44 to 47.
[34] Ibid, page 20, lines 9 to 45; page 50, lines 23 to 40.
[35] Ibid, page 25, lines 11 to 38; page 52, lines 8 to 12.
[36] Ibid, page 26, lines 21 to 30.
[37] Exhibit R2, Respondent’s Summonsed Documents, S1, page 1, paragraph 7.
[38] Transcript (2 November 2021), page 32, lines 28 to 38.
[39] Ibid, page 33, lines 4 to 10.
27. Prior to his sentencing for this offence in May 2018, the Applicant participated in a psychological examination for the purposes of preparing a pre-sentencing report, dated 3 April 2018, undertaken by Dr Minh Nguyen-Hoan, a psychologist[40]. The Tribunal notes that Dr Nguyen-Hoan was not called to give evidence at the hearing as to his assessment of the Applicant. As the content of this pre-sentencing report was not able to be tested during the hearing, any weight afforded to this report by the Tribunal is limited. With this in mind, the Tribunal notes the following findings of Dr Nguyen-Hoan:
(a)Dr Hoan prefaced his report, stating, “… an individual’s psychological functioning can change with time and circumstances. The opinions expressed in the current report may therefore change if additional information becomes available or if Mr Nguyen’s circumstances change significantly…”[41].
(b)Dr Hoan found the following with respect to the Applicant’s psychometric testing, “… Mr Nguyen endorsed prominent symptoms of generalised anxiety characterised by a state of tension, a readiness to react, physical discomfort, an inability to relax, an apprehensive sense that problems are imminent, excessive alertness, and general edginess. His responses also indicated the presence of major depression (e.g., pessimistic outlook of the future, pervasive sense of hopeless resignation, repetitive fearfulness, insomnia) and post-traumatic stress (e.g., intense fear, feelings of helplessness, severe anxiety, exaggerated startle response, hypervigilance)… Mr Nguyen’s MCMI-IV profile suggested that he was experiencing a range of clinical symptoms at the time of assessment that were causing him considerable distress. These results were largely consistent with mental health symptoms he described during the clinical interview”[42].
(c)Dr Hoan stated, “… The offence, then, appears completely out of character for Mr Nguyen and inconsistent with his values and views on drugs. As he stated, he made a “stupid” decision in the moment. This is likely to have been due to being in an unfamiliar environment (i.e., he had never attended a music festival before) and having consumed a small amount of alcohol that, while it did not cause him to be intoxicated, may have compromised his ability to think clearly. Mr Nguyen’s poor decision was also influenced by a culturally-driven sense of responsibility to provide for his younger friends and an eagerness to be liked. His ability to describe and explain the social and psychological impact of his actions on others, as well as his expression of immediate and ongoing feelings of guilt and shame following the offence, indicate Mr Nguyen’s level of insight into his own behaviour. In my opinion, his prospects for rehabilitation in the community are good given the protective factors present (e.g., a supportive family, stable accommodation and employment, prosocial attitudes) and motivation to build a life for his family in Australia… Mr Nguyen would benefit from psychological treatment to address his anxiety and depression…”[43].
[40] Exhibit R2, Respondent’s Summonsed Documents, S4, pages 9 to 16.
[41] Ibid, S4, page 10, paragraph 7.
[42] Ibid, pages 13 to 14, paragraphs 22 to 23.
[43] Ibid, pages 15 to 16, paragraphs 32 to 34.
28. The Applicant appeared before the Downing Centre District Court on 25 May 2018 and was convicted of one count of supply prohibited drug >indict. Quantity (not cannabis)-SI, for which he was sentenced to a ten-month intensive community corrections order commencing on 25 May 2018 and concluding on 24 March 2019[44]. There is no evidence before the Tribunal that the Applicant breached this intensive corrections order.
[44] Exhibit R1, Section 501 G Documents, G6, page 30.
Second conviction – committed in May 2019, convicted in May 2020
29. The second conviction of the Applicant relates to his attending the premises of a friend who had been growing cannabis plants hydroponically within a residential property. The agreed statement of facts in relation to this conviction confirm that the Applicant was seen exiting the premises on one occasion, entering and exiting on another subsequent occasion and arrested after attending the property on a third occasion in May 2019, by NSW police conducting surveillance on the property[45].
[45] Ibid, G9, pages 49 to 50.
30. The agreed statement refers to three rooms inside the premises containing cannabis plants and sophisticated hydroponic equipment used for the sole purpose of cultivating cannabis plants. The rooms contained a total of 75 cannabis plants, in four stages of growth, with unmetered electricity powering the hydroponic setup[46].
[46] Ibid, paragraph 5.
31. The agreed statement of facts go on to state that the Applicant was stopped by NSW police on the third occasion he attended the property (May 2019), in a vehicle (Lexus) registered in the Applicant’s name. NSW police searched the vehicle and found the Applicant’s wallet, as well as numerous keys (one of which opened the premises housing the cannabis plants). The Tribunal observes a NSW police report prepared at the time, which states there was AUD$9,000 in cash in the locked glovebox in the Applicant’s car[47].
[47] Exhibit R2, Respondent’s Summonsed Material, S6, page 22.
32. The Tribunal observes that in the agreed statement of facts, the Crown conceded that it could not prove the Applicant’s knowledge of a commercial quantity of prohibited plants, but it states the Applicant was aware of an amount of close to 50 cannabis plants.
33. During the course of the hearing, the Applicant was questioned as to the facts of his second conviction. The Tribunal summarises the Applicant’s evidence below:
(a)The Applicant told the Tribunal that he attended his friend’s property to check on the lights and tend to his garden as a favour. The Applicant confirmed that he was aware that his friend was involved in cultivating cannabis, an illegal activity[48].
(b)The Applicant accepted that his conduct was related to the illegal activities of his friend[49]. The Applicant conceded that he was aware illegal activities were occurring at his friend’s premises on the second occasion he had visited the premises of his friend, and that he had sought to return the key to his friend’s premises on the third occasion when he visited (when he was stopped by NSW police)[50].
(c)The Applicant stated that the $9,000 cash located in his locked glovebox was borrowed from his older sister for the purpose of buying a new car[51].
(d)The Applicant conceded that he had only known the friend who was responsible for the cultivation of the cannabis for a few months through his soccer team, which he still plays on, but that he has not spoken with this friend since his arrest[52].
[48] Transcript (2 November 2021), page 27, lines 30 to 47; page 28, lines 1 to 15.
[49] Ibid, page 28, lines 33 to 35.
[50] Ibid, page 30, lines 1 to 16.
[51] Ibid, page 31, lines 1 to 8.
[52] Ibid, page 27, lines 10 to 25; page 36, lines 5 to 17.
34. The Tribunal notes the Applicant was charged on 26 May 2019, and held in criminal custody, as he was initially refused bail. After approximately nine to ten days in custody, the Applicant was released and granted bail. There is no evidence before the Tribunal that the Applicant has breached the terms of his bail prior to sentencing in May 2020.
35. Prior to the Applicant’s sentencing for this offence in May 2020, the Applicant participated in a psychological examination for the purposes of preparing a pre-sentencing report, dated 11 May 2020, and undertaken by Mr Bradley Jones, a forensic psychologist[53]. The Tribunal notes that Mr Jones was not called to give evidence as to his assessment at the hearing. As the content of this pre-sentencing report was not tested during the hearing, any weight afforded by the Tribunal is thereby limited. With this in mind, the Tribunal notes the following findings of Mr Jones:
(a)Mr Jones prefaced his report by stating the Applicant was assisted by a Vietnamese language interpreter.
(b)Mr Jones stated that with respect to a formal diagnosis, the Applicant did not suffer any psychological or psychiatric disorder.
(c)Although Mr Jones stated that he had a copy of NSW Police criminal history of the Applicant printed on 26 May 2019, the Tribunal observes Mr Jones did not refer to the Applicant’s first conviction in the reasons of this report, particularly in the context of his psychological assessment of the Applicant with respect to his second drug related conviction.
(d)Mr Jones assessed the Applicant as a low risk of re-offending with respect to LSI-R risk assessment and stated that he would require a low level of supervision if he received a non-custodial sentence. Mr Jones identified the Applicant’s criminogenic needs as family/marital and companions.
(e)Mr Jones stated that to manage and decrease the risk of the Applicant’s recidivism, he believed it would be in the interests of the Applicant (and the community generally) for him to obtain treatment that includes, “… monitoring and supervision by Community Corrections personnel of Mr. Nguyen’s non-custodial environment and support networks to limit destabilising influences, and to build effective support systems…”.
[53] Exhibit R1, Section 501 G Documents, G12, pages 67 to 77.
36. The Applicant appeared before the Parramatta District Court on 26 May 2020 and was convicted of one count of take part of enhanced indoor cultivation cannabis commercial - SI, for which he was sentenced to a two-year community correction order, commencing on 26 May 2020 and concluding on 25 May 2022[54]. There is no evidence before the Tribunal that the Applicant has breached the requirements of the community correction order to date.
[54] Ibid, G6, page 30.
Evidence from witnesses called by the Applicant
37. The Tribunal will provide an overview of the evidence from both witnesses called by the Applicant.
Mrs Thuy Trang (Jenny) Huynh (Applicant’s wife)
(a)Ms Huynh stated that she has known the Applicant for ten years and they have been married for nine.
(b)She recounted how the Applicant financially supported her throughout her studies and to continues to do so. She stated that he has remained a loyal partner and source of constant love and support.
(c)After finding out about the Applicant’s second criminal offence, she was very upset and wanted space. She gave him an ultimatum – if he were to re-offend, they would no longer be a couple. She said that the Applicant has given her his word that he will not commit any further offences.
(d)Ms Huynh stated that she is very fearful of the possibility of the Applicant being deported and that they have postponed their plans for a family (i.e., having children and purchasing a home) until his visa status is resolved.
(e)Ms Huynh stated that it would be too difficult to move to Vietnam with the Applicant and she is unsure if she could transfer her legal qualifications, making the chance of future employment as a solicitor remote. She also reported experiencing difficulties managing her mental health (anxiety) since becoming aware of the Applicant’s visa status and her GP has provided her with a referral letter to a psychologist, which is also before the Tribunal[55].
(f)The Applicant’s time in prison with other inmates ‘changed him’ and was a big ‘reality check’. She stated that the Applicant was no longer ‘naïve in trusting people’ and has matured since his most recent offending episode. Ms Huynh stated that the Applicant now focuses on working and trying to build a better future for them. She also outlined his community contributions (volunteering for Turbans of Australia and another local temple in Cabramatta).
Ms Thi Be Hanh Nguyen (younger sister of the Applicant)
(a)Ms Nguyen stated that she has known the Applicant for his whole life and arrived with him from Vietnam on the same flight, in 2010.
(b)She first spoke with the Applicant about his offending conduct when he was released from custody in 2019, after committing the second offence. Ms Nguyen reported that the Applicant was distraught and deeply regretful of his criminal offending. She believes that the Applicant’s first offence was financially motivated as there was ‘family pressure’ on the Applicant to support his parents and siblings.
(c)Ms Nguyen stated that since his release in 2019, the Applicant has become a lot quieter and calmer, spending more time at home with his family and building relationships with his siblings. She also notes the Applicant often struggles to make decisions and second-guesses himself, often asking others for advice.
(d)She stated that the Applicant has helped the community through his business (i.e., employing other drivers). She also stated the Applicant has assisted her, on an ad-hoc basis, with her living expenses (which Ms Nguyen used for tuition).
(e)Ms Nguyen stated that the Applicant’s removal to Vietnam would be a ‘disaster’ for her. She stated that her and the Applicant have very little life experience, or support from family members in Vietnam. Ms Nguyen said that it would be difficult for her and her parents to cope and continue to live in Australia without the Applicant.
[55] Exhibit A6, Applicant Submission – Dr Peter Ly.
Does the Applicant pass the character test?
38. Section 501(6) of the Migration Act sets out the character test, relevantly section 501(6)(d)(i), which the delegate of the Minister relied upon when refusing to grant the visa, provides:
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
…
39. The Minister’s delegate considered there to be a risk that the Applicant would reoffend and engage in criminal conduct, having regard to the Applicant’s criminal history.
40. With respect to the application of section 501(6)(d)(i) of the Migration Act, the Tribunal refers to their Honours, Perram, Murphy and Lee JJ, in Minister for Immigration and Border Protection v Sabharwal[56]:
… The section requires an evaluative judgement by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk”. Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person…
[56] [2018] FCAF 160 at [2].
41. It is noted that His Honour Kerr J in the earlier decision in Sabharwal and Minister for Immigration and Border Protection[57], stated:
[57] [2018] FCA 10 at [79] to [84], citing, inter alia, Minister for Immigration and Ethnic Affairs [1997] HCA 22 at 574 to 575 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
… Section 501(6)(d)(i) relevantly provides that the Applicant fails the character test if there is “a risk that [he] would engage in criminal conduct in Australia”.
The text of s 501 read in its statutory context, properly construed, defines the boundary of the power lawfully available to the Minister. The Minister, having regard to the known circumstances, must evaluate the risk of a person engaging in the future in criminal conduct in Australia.
In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed as follows (at 574-575):
“The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”
Their Honours’ observations about the task that must be undertaken by a decision maker required to evaluate whether something may or may not occur in the future are not limited to the context in which they arose. They are timeless.
Counsel for the Minister properly acknowledged that the terms of the Explanatory Memorandum (the EM) for the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) which amended s 501(6)(d)(i) must be relevant to the task of construction. Paragraph 46 of Sch 1 of the EM states that the “intention” of the provision was that “the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”
Thus a derisorily small possibility would and could not satisfy the statutory test. However something that is “likely” to occur plainly would be within its terms…
42. Therefore, when making an assessment of the Applicant’s potential future behaviour and possibility of any further criminal offending, the Tribunal need only find that it is likely to occur, in order to make a finding that the Applicant fails the character test.
43. It is not sufficient for the Tribunal to establish that the Applicant has engaged in criminal conduct in the past. Rather, what needs to be established is that there is an ongoing risk of the Applicant engaging in such conduct in the future, and that risk is more than minimal or remote.
44. In considering whether to exercise the discretion in accordance with section 501(1) of the Migration Act, the Tribunal must have regard to Ministerial Direction No 90[58] (herein referred to as ‘the Direction’). Paragraph 6 of section 2 of the Direction provides the following with respect to the application of the character test:
[58] Direction No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
6 Risk in regards to future conduct (section 501(6)(d))
(1)A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.
(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2) The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded...
45. In the present application, the Respondent has contended that there is more than a minimal or remote chance that the Applicant (if allowed to remain in Australia) would engage in criminal conduct for which a conviction could be recorded[59].
Tribunal’s assessment of risk regarding future conduct of the Applicant pursuant to section 501(6)(d)(i) of the Direction
[59] Exhibit R3, Respondent’s Statement of Facts, Issues and Contentions, page 7, paragraph 32.
46. The Tribunal is of the view that the two drug related convictions of the Applicant are serious in nature. Both convictions involve a significant quantity of drugs. The first conviction involved the Applicant being caught with $2,000 worth of “3,4-methylenedioxy-methylamphetamine”, commonly known by its street name, “MDMA”. The second conviction occurred in circumstances where the Applicant was caught taking part in the enhanced indoor cultivation of 75 cannabis plants (noting that the agreed statement of facts state the Applicant only had actual knowledge of 50 plants).
47. The Tribunal observes there is a lack of contemporaneous clinical opinion with respect to the Applicant’s risk of recidivism, and whether the Applicant has undertaken adequate steps to reduce his risk of recidivism. Of the opinions contained in the exhibits before the Tribunal, none of the authors were called to give evidence during the course of the hearing. The inability of the Tribunal to ask questions of each expert in relation to their clinical opinion therefore limits the weight the Tribunal can afford each report.
48. The Tribunal accepts the Applicant’s submissions with respect to the clinical opinion offered by Mr Jones recommending the Applicant obtain treatment that included, “monitoring and supervision by Community Corrections personnel of Mr Nguyen’s non-custodial environment and support networks to limit destabilising influences, and build effective support systems”[60], and that Mr Jones did not specifically recommend the Applicant undertake formal rehabilitation.
[60] Exhibit A5, Applicant Statement of Facts, Issues and Contentions, page 29, paragraph 28(a).
49. However, the Tribunal has earlier expressed caution regarding Mr Jones’ report with respect to the lack of explanation regarding the Applicant’s first drug related conviction in the context of providing his clinical opinion with respect to the Applicant’s second drug related conviction[61].
[61] Exhibit G1, Section 501 G Documents, G12, page 72; Exhibit A7, Applicant Closing Submissions, pages 7 to 8, paragraphs 57 to 60.
50. The Tribunal’s caution arises from the closeness in time of the repeated offending of the Applicant. The Applicant was charged with a second serious drug related offence only two months after his ten-month intensive community corrections order had expired for his first drug related conviction.
51. The Tribunal observes the Applicant expressed deep remorse and understanding with respect to his first drug related conviction, noting Dr Hoan’s pre-sentencing report dated 3 April 2018, where he reported, “…his ability to describe and explain the social and psychological impact of his actions on others, as well as his expression of immediate and ongoing feelings of guilt and shame following the offence, indicate Mr Nguyen’s level of insight into his own behaviour”[62]. Yet, the Applicant went on to seriously offend in May 2019 with respect to his conduct, which led to his conviction for take part of enhanced indoor cultivation cannabis commercial – SI.
[62] Exhibit R2, Respondent’s Summonsed Documents, S4, pages 9 to 16.
52. The Tribunal concurs with the Respondent’s contention that the subsequent offending of the Applicant brings into question the remorse he has previously expressed for his offending conduct, and the insight he has expressed with respect to the impact of his actions on the community[63].
[63] Exhibit R3, Respondent’s Statement of Facts, Issues and Contentions, page 7, paragraph 33.
53. The Tribunal is of the view that the most credible explanation for the Applicant’s motivation for his conduct relating to his first conviction is that of financial gain. The Tribunal notes when the Applicant’s younger sister, Ms Thi Be Hanh Nguyen, was questioned as to whether her brother was motivated for financial gain, she agreed this was the case with respect to the Applicant’s first conviction[64]. In fact, the Applicant effectively conceded this during the course of cross-examination, the Tribunal refers[65]:
Respondent: Did you not think that that would be strange, if someone was asking you to put this packet into your underwear?
Applicant: ---Yes, I was saying – at that moment I didn’t think at all, no thinking at all, I am just thinking about, you know, getting paid $500 to take this inside and then yes, I just did it.
[Tribunal bold for emphasis]
[64] Transcript (2 November 2021), page 70, lines 23 to 27.
[65] Ibid, page 19, lines 44 to 47.
54. The Tribunal notes that the NSW Department of Justice, in an Intensive Correction Order assessment report, stated the Applicant had, “… attributed his behaviour to the attraction of financial reward for his involvement. Although Mr Nguyen denied experiencing any financial difficulty during this time, he claimed the financial agreement was enticing for him to spend on food and drink throughout the day…”[66].
[66] Exhibit R2, S3, page 7.
55. The Tribunal observes the Applicant’s recorded denial to the NSW Department of Justice with respect to his experiencing financial difficulty at the time of his first offence, and the Applicant’s submissions to the Tribunal that, “… I learned my lesson and I do not want anyone else done anything like me just because they’re struggled financially…”[67].
[67] Exhibit A5, Applicant Statement of Facts, Issues and Contentions, page 7, paragraph 7.
56. The Tribunal is of the view the Applicant has failed to adequately explain the motivation for his offending with respect to his second conviction. The Applicant’s evidence was that he was simply ‘helping out’ his friend (whose premises was housing the cannabis) whom he had only known for a few months, through a soccer team which he continues to play on.
57. The Tribunal does not find the explanation of the Applicant to be particularly credible. With respect to his claims regarding his second offence, where on a subsequent visit to his friends’ home, he sought to return his friend’s keys, with the full knowledge of the illegal drug related activities taking place at his friends’ home. The implications of the Applicant’s association with such illegal activity ought to have been appreciated by the Applicant given the sentence he received with respect to his first drug related criminal conviction. The Tribunal is of the view that this seriously brings into question the Applicant’s judgement with respect to his association with individuals and drug related activity.
58. With respect to the Applicant’s submissions regarding the support of his family and the stability of employment having a deterring effect on the Applicant’s risk of recidivism, the Tribunal observes that these supports were in place at the time of the Applicant’s initial offending, yet this did not deter him from reoffending.
59. In forming an assessment of the risk that the Applicant may commit further criminal conduct should he be allowed to remain in Australia, the Tribunal has had regard to the criminal offending history of the Applicant. Whilst the Tribunal accepts that the past criminal convictions of the Applicant are not a certain guide as to the future conduct of the Applicant, the Tribunal is of the view that it does provide a basis for determining the probability of the Applicant committing future criminal acts, should he be allowed to remain in Australia.
60. The Tribunal has considered the opinions and assessments in the evidence before it with respect to the Applicant being assessed as a low risk of re-offending. The Tribunal is not satisfied, based on the evidence before it and that of the Applicant, that the risk of the Applicant re-offending could be considered minimal, or remote.
Does the Applicant pass the character test?
61. It is the Tribunal’s assessment that there is indeed more than a minimal or remote risk of the Applicant re-offending, and has formed this view on the basis of the above reasons, and reiterates the following with respect to forming this view:
(i)the diminished remorse of the Applicant in circumstances where he re-offended only two months after his intensive community correction order expired, with respect to the sentence he received for his first drug related conviction;
(ii)the closeness in time of the two drug related offences; and
(iii)the Tribunal’s concerns with respect to the Applicant’s judgement regarding his association with individuals and drug related activity.
62. Having found that there is indeed more than a minimal or remote risk of the Applicant engaging in criminal conduct should he be allowed to remain in Australia, with respect to the application of section 501(6)(d)(i) of the Migration Act and having regard to the requirements of paragraph 6 of section 2 of the Direction, the Tribunal therefore finds that the Applicant does not pass the character test.
Is there another reason why the cancellation of the Applicant’s visa should be revoked?
63. As the Tribunal has found that the Applicant does not pass the character test pursuant to section 501(6) of the Migration Act, it is necessary for the Tribunal to consider the secondary question regarding the exercise of the discretion in section 501(1) of the Migration Act to refuse to grant the Applicant a Permanent Residence (Spouse Visa) (Class 801) visa. This, in turn, requires the Tribunal to consider the application of the Direction.
64. The Direction outlines a framework for decision makers with respect to exercising discretion in accordance with section 501(1) of the Migration Act. Paragraph 6 of the 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.
[Tribunal underline for emphasis]
65. Paragraph 7 of the 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”.
66. Sub-paragraph 7(2) of the Direction provides that, “primary considerations should generally be given greater weight than the other considerations”. Additionally, sub-paragraph 7(3) of the Direction provides that, “one or more primary considerations may outweigh other primary considerations”.
67. The relevant Primary Considerations in the context of a revocation decision appear in Paragraph 8 of the Direction:
(1)Protection of the Australian community from criminal or other serious conduct (herein referred to as ‘Primary Consideration 1’);
(2)Whether the conduct engaged in constituted family violence (herein referred to as ‘Primary Consideration 2’);
(3)The best interests of minor children in Australia (herein referred to as ‘Primary Consideration 3’); and
(4)Expectations of the Australian community (herein referred to as ‘Primary Consideration 4’).
68. The Other Considerations which must be taken into account are listed in paragraph 9(1) of the Direction. These considerations are:
(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.
69. A number of principles are set out in paragraph 5.2 of the Direction which decision makers must consider in the exercise of their discretion. The Tribunal has transposed these principles here:
(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
70. Paragraph 8.1(1) of the Direction requires decision makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. It further states that entering or remaining in Australia is a privilege that Australia confers on non-citizens, with 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.
71. Paragraph 8.1(2) of the Direction requires decision makers to consider 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.
The nature and seriousness of the Applicant’s conduct
72. With respect to the Applicant’s closing submissions that sub-paragraphs 8.1.1(1)(c), (d) and (e) of the Direction, “ought be considered in his favour” [68], the Tribunal rejects this contention on the basis on the basis of the reasons which follow with respect to these considerations within the Direction. The Tribunal has reviewed the facts of the application before it and finds the following, with respect to considering the nature and seriousness of the Applicant’s conduct, when applying paragraph 8.1.1(1) of the Direction:
(a)The factual circumstances of the Applicant’s offences did not involve violent or sexual crimes; crimes were not committed against women or children and it did not involve family violence. Therefore, sub-paragraphs 8.1.1(1)(a)(i), (ii) and (iii) have no weight and are not determinative of any finding.
(b)The factual circumstances of the Applicant’s offending did not involve crimes against persons being party to a forced marriage; nor 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; and nor did the Applicant commit a crime whilst in immigration detention. Therefore, sub-paragraphs 8.1.1(1)(b)(i), (ii) and (iv) have no weight and are not determinative of any finding.
(c)The Respondent has contended that the Applicant’s conduct must be viewed as serious, with respect to this consideration within the Determination[69]. The Tribunal notes, with respect to consideration sub-paragraph 8.1.1(1)(b)(iii), that the Applicant conceded in closing submissions that his first conviction was serious[70]. Overall, the Tribunal is of the view that the nature of the Applicant’s offending is considered serious, in circumstances where he has engaged in repeated drug related offences involving large quantities of prohibited drugs.
(d)In closing submissions to the Tribunal, the Applicant has contended that the second conviction ought to be considered far less serious on the basis that the Applicant received a non-custodial sentence, putting him in a category of offenders (for similar offending) where only 9% received such a sentence[71]. With respect to considering sub-paragraph 8.1.1(1)(c) of the Direction, the Tribunal accepts that judicial officers chose to sentence the Applicant by way of non-custodial sentencing options for his two drug related convictions, and the Applicant was afforded leniency in sentencing, considering the maximum sentences which could be imposed for each offence.
(e)The Applicant has contended, with respect to the frequency of his offending and whether there is a trend of increasing seriousness, that: (1) this would not be an adverse consideration in circumstances where there was a substantial gap between the two offences; (2) there was a clear reduction in the seriousness of the offending conduct between the offences; (3) the role of the Applicant in the offending decreased in seriousness; and (4) the decreasing seriousness of the Applicant’s role ought be considered in the Applicant’s favour[72]. With respect to sub-paragraph 8.1.1(1)(d) of the Direction, the Tribunal accepts the Applicant’s role in his second conviction was not as serious as that of the first. The Tribunal is of the view the repeated drug convictions of the Applicant are indicative of a trend in the Applicant’s offending but accepts the Applicant’s involvement in the second conviction was not as serious as that of his first conviction.
(f)The Applicant has contended that the offending ought to be characterised as isolated incidents of poor decision-making and lack of forethought, with respect to considering the cumulative effect of repeat offending[73]. With respect to considering sub-paragraph 8.1.1(1)(e) of the Direction, the Tribunal is of the view there is indeed a cumulative effect with respect to the Applicant’s drug related convictions. Specifically, the direct and indirect effect on the community which includes negative health impacts on individuals from the consumption of illicit drugs, and the cost of these impacts more broadly in terms of community resources required to intervene including policing, emergency services, and hospitals.
(g)The factual circumstances of the Applicant’s offences did not involve the provision of false or misleading information to the Respondent, therefore sub-paragraph 8.1.1(1)(f) is of no weight and not determinative of any finding.
(h)The factual circumstances of the Applicant’s offences did not involve him re-offending since being formally warned or made aware of in writing about the consequences of further offending with respect to his migration status, therefore sub-paragraph 8.1.1(1)(f) is of no weight and is not determinative of any finding.
[68] Exhibit A7, Applicant Closing Submissions, page 5, paragraph 34.
[69] Exhibit R3, Respondent’s Statement of Facts, Issues and Contentions, page 8, paragraph 42.
[70] Exhibit A7, Applicant’s Closing Submission, page 5, paragraph 35.
[71] Ibid, pages 5 to 6, paragraphs 35 to 41.
[72] Ibid, page 6, paragraphs 42 to 45.
[73] Ibid, paragraphs 46 to 48.
73. Upon a holistic consideration of the relevant factors within the Determination, and the evidence before the Tribunal, the Tribunal is of the view that the nature and seriousness of the Applicant’s offending conduct is considered serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
74. Paragraph 8.1.2(2) of the Direction requires a decision maker to consider the following factors on a cumulative basis when considering the risk to the Australian community:
(1)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(2)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).
The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct
75. With respect to assessing the nature of harm to individuals in the Australian community should the Applicant further engage in criminal or other serious conduct, the Tribunal observes the Commonwealth Department of Health’s 2017 to 2026 National Drug Strategy, which outlines various direct and indirect harms suffered by the community stemming from the trade of prohibited drugs (which the Tribunal has briefly touched on in earlier reasons)[74].
[74] Exhibit R2, Respondent’s Summonsed Documents, S7, pages 25 to 80.
76. The Tribunal refers to the following summarised direct and indirect harms[75]:
(a)Health harms, including injuries, chronic health problems, mental health problems, and road trauma.
(b)Social harms, including violence and other crime, engagement with the criminal justice system more broadly, unhealthy childhood development and trauma, intergenerational trauma, contribution to domestic and family violence; child protection issues; and child/family wellbeing issues.
(c)Economic harms, associated with healthcare and law enforcement costs, decreased productivity, associated criminal activity, and reinforcement of marginalisation and disadvantage.
[75] Ibid, pages 31 to 32.
77. The Applicant, through submissions to the Tribunal and in evidence during cross-examination, has also conceded the harms to the community which result in the trade of prohibited drugs. The Tribunal refers[76]:
… I had learned so many lessons in life, I’m truly feel so wrong for bringing illegal stimulants for other people in the community. I have searched a lot about the negatives causes of those illegal stimulants such as: causing health problem leads to dangerous health issue and also causing tremendous effect for environment and society. In the last 3 years I have always been giving useful information about the negative effect of that stimulant on social media and my own community to prevent bad choices cause by young people and help them understand the bad effect with knowledge so no one make the wrong action as I did…
[76] Exhibit A5, Applicant Statement of Facts, Issues and Contentions, page 8, paragraph 8.
78. The Tribunal notes the Applicant, in closing submissions, contended the following with respect to his second conviction[77]:
… 50. The Applicant’s most recent offending conduct relates to the drug cannabis. It is submitted that the Australian community’s approach to the drug cannabis is changing, as evidenced by the Federal Government’s commencing support in 2016 for the growth of cannabis for medicinal and scientific purposes, as well as the ACT decriminalising cannabis possession and cultivation in the home.
51. The Applicant does not seek to obfuscate the fact that his conduct was illegal and that the illicit drug trade is not a matter which will ever be accepted by the Australian community. The Applicant only seeks to raise that his offending conduct in relation to cannabis is not to be viewed as seriously as participating in the cultivation or preparation of other, more serious, drugs…
[77] Exhibit A7, Applicant Closing Submissions, paragraphs 50 to 51.
79. The Tribunal rejects the above closing submissions of the Applicant, and notes that the facts of the second conviction do not align with what has been suggested above. The house the Applicant was found to be at with respect to his second conviction contained a total of 75 cannabis plants, in four stages of growth, with unmetered electricity powering a hydroponic setup. Further, the Tribunal notes that parliaments across the Commonwealth recognise the severity of the harms caused by drug related offending and have taken strong measures to prevent this, through deeming activities associated with it as criminal acts.
80. The Tribunal is of the view that should the Applicant engage in similar offending conduct in the future (which has in the past included facilitating accessibility to a significant quantity of prohibited drugs in the wider Australian community), the nature of the harm to the Australian community would be serious.
The likelihood of the Applicant engaging in further criminal or other serious conduct
81. With respect to assessing the likelihood of the Applicant engaging in further criminal or other serious conduct, the Tribunal has already established in earlier reasons that, in its view, there is indeed more than a minimal or remote risk of the Applicant re-offending.
82. The Tribunal has previously detailed earlier in these reasons its reservations with respect to placing weight on the pre-sentencing psychological assessment undertaken prior to sentencing for the Applicant’s second conviction. The Tribunal has also noted that none of the authors of the pre-sentencing psychological assessments appeared before the Tribunal, and opinions within these reports were not tested, thereby limiting the weight the Tribunal can afford such assessments.
83. The Tribunal accepts that the Applicant has not breached the terms of his two non-custodial sentences involving community corrections orders whilst he has resided within the community.
84. It has been contended by the Applicant, in closing submissions, that the opinion in the pre-sentencing report by Mr Jones of 11 May 2020 did not recommend any formal rehabilitation with respect to the Applicant’s risk of recidivism, nor did the Community Corrections Service require the Applicant to undertake formal rehabilitation[78].
[78] Ibid, paragraphs 56 to 59.
85. The Tribunal further observes that there is no evidence before it confirming the Applicant complied with the recommendation of his first pre-sentencing psychological report prepared by Dr Nguyen-Hoan. Dr Nguyen-Hoan recommended the Applicant seek psychological treatment for anxiety and depression, and that his prospects in the community appeared “good” given protective factors present (with the examples of supportive family, stable accommodation and employment, and pro-social attitudes, with motivation to build a life for his family in Australia)[79]. Yet, despite this, the Applicant went on to offend again in circumstances where he had actual knowledge of the illegal activities he chose to associate with, and his life circumstances were largely the same as they were at the time of his first offence.
[79] Exhibit R2, Respondent’s Summonsed Material, S4, page 16, paragraphs 32 to 34.
86. Upon reflecting on the Applicant’s explanations of his offending conduct, the Tribunal was of the view the Applicant failed to adequately address why he engaged in his offending conduct.
87. His explanation regarding his first conviction was that he just followed the instructions of the individual who handed him the significant quantity of drugs to take into the music festival for $500. Despite the Applicant claiming during his evidence under cross examination that he was not told what was in the package[80], the statement of agreed facts regarding this offence states that the Applicant, “guessed” that the package contained, “MDMA”, and that the package contained, “about a hundred”, which the Applicant assumed, “was probably worth about $2000”. When the Tribunal pressed the Applicant on his guesses as per the statement of facts, the Applicant told the Tribunal that he had guessed this as he watched news reports and had seen people getting caught[81].
[80] Transcript (2 November 2021), page 19, lines 20 to 25.
[81] Ibid, page 32, lines 27 to 46.
88. With respect to the Applicant’s second conviction, the Applicant admitted to, “helping a friend”, whom he had only known for a few short months through a soccer team he continues to play on. The Applicant conceded he had gone to the property on three occasions, but claimed he was only aware of the cannabis on the second occasion, despite returning on the third occasion to, “return a key” to his friend, in full knowledge of the illegal activities occurring at the premises.
89. The Tribunal concurs with the Respondent’s contention that, “… In the absence of there being any explanation of why the offending occurred, the Minister submits that Tribunal could not be satisfied that the risk of this occurring in the future is remote…”[82].
[82] Exhibit R4, Respondent’s Closing Submissions, page 2, paragraph 3(b).
90. The Tribunal is not convinced that the Applicant has taken adequate steps to address the criminogenic factors motivating his offending conduct. With respect to the steps the Applicant claims he has taken to rehabilitate, the Tribunal refers to the following exchange[83]:
[83] Transcript (2 November 2021), page 33, lines 23 to 47; page 34, lines 1 to 2.
Respondent: What steps have you taken to ensure that you wouldn’t offend in the future?
Applicant: ---So, like, how I’m doing to avoid committing another offence?
Respondent: Yes. Have you spoken to anyone about it? Have you done any courses? What specifically have you done?
Applicant: ---Yes, let me remember. No, just after the time I’m serving in jail, so I’ve been talking to my inmate and they’re talking that how bad is the drug, you know, going to be affect people and then I learn it from them. So, my inmate also taught me what is the result of using drug or what is relate to drug and then I realise that the bad thing is this can be happen, going to the bad way. So, yes, I learn it from them.
Respondent: This was during your nine or 10 days in jail in 2019, I believe, is that right?
Applicant: ---Yes.
Respondent: You haven’t completed any courses?
Applicant: ---No, I haven’t completed any courses. Yes.
Respondent: You haven’t seen a drug and alcohol counsellor or anything similar to that?
Applicant: ---Yes, I seen, I seen people who using drug and how they affect that people, even alcohol. I seen them and as I can say, is very bad, so I learn it and you know, just stay away from that and try to make them not using or anything relate to drug offend.
Respondent: My question was not have you seen other people, like, have you seen a professional, so a counsellor or a psychologist to talk about your past offending and it’s relation to drugs?
Applicant: ---Yes, I just seen Mr John, which is during my - the psychologist, so I talk about that with him.
91. The Tribunal observes the Applicant’s admissions that the only form of counselling he has undertaken was a consultation for the purposes of preparing a pre-sentencing report for his second conviction. The Applicant’s evidence was that he realised the impact of his drug related offending after discussing it with an inmate during his brief period in custody following his second offence, prior to receiving bail.
92. The Tribunal is of the view that upon reflection of the Applicant’s evidence, it is not convinced the Applicant has taken sufficient steps to address the motivations for his offending behaviour. It is the Tribunal’s view that the Applicant has failed to properly explain what his motivations were for his offending conduct, particularly in relation to the second offence.
93. Even in circumstances where the Tribunal accepts the various documented assessments of the Applicant’s risk of recidivism as being “low”[84], the Tribunal is of the view that the likelihood of the Applicant reoffending is more than minimal or remote, a finding the Tribunal has made in earlier reasons of this decision.
[84] Exhibit G1, Section 501 G Documents, G12, page 72, paragraph 26; Exhibit R2, Respondent’s Summonsed Material, S3, page 7; S5, page 18.
94. With respect to the application of sub-paragraph 8.1.2(c) of the Direction, the Tribunal observes the Applicant has applied for a Permanent Residence (Spouse Visa) (Class 801) visa, and the evidence of the Applicant was that he intends to permanently reside in Australia. As such, the Tribunal is satisfied that this sub-paragraph within the Direction is not relevant in circumstances where the Applicant has applied for a permanent visa.
Conclusion: Primary Consideration 1
95. The Tribunal has had regard to the provisions of paragraphs 8.1.1 and 8.1.2 of the Direction, as well as the principles outlined in paragraph 5.2, and finds that:
(a)the nature and seriousness of the Applicant’s criminal offending is viewed seriously;
(b)there is more than a minimal or remote possibility of the Applicant reoffending; and
(c)should the Applicant engage in similar offending conduct in the future (which has in the past included facilitating accessibility to a significant quantity of drugs in the wider Australian community), the nature of the harm to the Australian community would be serious.
96. In consideration of all the evidence and each of the relevant factors contained in the Direction, the Tribunal finds that Primary Consideration 1 weighs heavily in favour of refusal of the Applicant’s visa.
Primary Consideration 2: Family violence committed by the Applicant
97. Sub-paragraph 8.2(1) of the 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.
98. Sub-paragraph 8.2(2) of the Direction requires decision makers to give consideration to the Applicant’s circumstances where the Applicant:
a) has been convicted of an offence, found guilty of an offence, or had charges proven however so described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under s501 or section 501CA (of the Migration Act) has been afforded procedural fairness.
99. Sub-paragraph 8.2(3) of the Direction outlines a series of factors which decision makers must consider where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i) the extent to which the person accepts responsibility for their family violence related conduct;
ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii) efforts to address factors which contributed to their conduct; and
d) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
100. The Tribunal is satisfied that the factual circumstances of the Applicant’s offending did not involve offending that constituted family violence for the purposes of this consideration within the Direction. Therefore, Primary Consideration 2 is of no weight, and is not determinative of any finding.
Primary Consideration 3: The best interests of minor children in Australia
101. Sub-paragraph 8.3(1) of the 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.
102. Sub-paragraph 8.3(2) of the 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.
103. With respect to the consideration of the individual interests of the Applicant’s minor nieces and nephews, the Tribunal is guided by sub-paragraph 8.3(3) of the Direction, which provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
104. Sub-paragraph 8.3(4) of the 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.
105. With respect to the best interests of relevant minor children who may be impacted by the refusal of the Applicant’s visa, there is only one relevant child which has been identified in the evidence before the Tribunal. This is Child L, who is seven years of age and is the son of the Applicant’s older sibling, Ms Thi Be Hai Nguyen (the Applicant’s nephew).
106. Sub-paragraph 8.3(4)(a) of the 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 whether an existing Court order restricts contact).
107. The Tribunal heard evidence from the Applicant that he has a close relationship with his nephew, as his nephew resides in the same home he shares with his wife, in addition to his older sister (Ms Thi Be Hai Nguyen) and her husband, as well as the Applicant’s parents.
108. The Applicant stated to the Tribunal that he often stepped in to assist with helping to care for Child L, assisting taking him to sporting activities and doing homework, as Child L’s father was often at work[85].
[85] Transcript (2 November 2021), page 8, lines 10 to 15.
109. In considering the relevant weight with respect to this consideration, the Tribunal notes that Child L is the nephew of the Applicant and has therefore applied less weight as the relationship is non-parental.
110. In circumstances where the Child L resides with the Applicant, and the close relationship the Applicant has with Child L is verified in statements provided by Child L’s mother[86], the Tribunal affords sub-paragraph 8.3(4)(a) of the Direction a moderate measure of weight in favour of not refusing the visa application.
[86] Exhibit A5, Applicant Statement of Facts, Issues and Contentions, page 16.
111. Sub-paragraph 8.3(4)(b) of the 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.
112. The Tribunal is of the view there is nothing in the available evidence to suggest the Applicant would not continue to play a positive role in the life of Child L, should the Tribunal decide not to refuse the Applicant’s visa (noting this represents some eleven years, with Child L currently seven years of age). However, the Tribunal notes the Applicant does not fulfill a parental role, the Applicant’s role is one of an uncle[87].
[87] Transcript (2 November 2021), page 47, lines 1 to 7.
113. Sub-paragraph 8.3(4)(c) of the 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.
114. There is nothing in the material submitted to the Tribunal from any independent expert witness indicating any negative psychological (or other) impact of the Applicant’s prior (or potential future) criminal conduct on the life of the relevant child identified by the Tribunal. The only reasonable finding is that sub-paragraph (c) of paragraph 8.3(4) of the Direction merits a neutral allocation of weight.
115. Sub-paragraph 8.3(4)(d) of the 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.
116. The Tribunal observes the Applicant would be able to maintain contact with Child L, via phone, video calls or social media, should the decision of the Tribunal affirm the earlier decision of the delegate of the Respondent not to grant the Applicant a visa. The Tribunal observes that there is no evidence of the views of Child L expressing or delineating any adverse effect upon them were the Applicant to be removed from Australia. However, the Tribunal does accept that long term separation between the Applicant and Child L could negatively impact Child L given the closeness of his existing relationship with the Applicant.
117. In view of these reasons, the Tribunal affords the sub-paragraph 8.3(4)(d) of the Direction is of a moderate weight in favour of not refusing the visa application.
118. Sub-paragraph 8.3(4)(e) of the Direction requires decision makers to consider whether there are other persons who already fulfil a parental role in relation to the child.
119. The Tribunal has already confirmed in these reasons that it was conceded by the Applicant during the hearing that he does not play a parental role in the life of Child L; that role is fulfilled by Child L’s mother and father.
120. Sub-paragraph 8.3(4)(f) of the 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).
121. In circumstances where the Tribunal does not have the views of any of the relevant child before it, the Tribunal is unable to afford sub-paragraph (f) of paragraph 8.3(4) of the Direction any measure of weight. This consideration is therefore of no weight and is not determinative of any finding.
122. Sub-paragraph 8.3(4)(g) of the 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.
123. There is no evidence of the above-described considerations with respect to the factual circumstances of the Applicant. The Tribunal is of the view that the only reasonable finding is that this sub-paragraph (g) is of no weight and is not determinative of any finding.
124. Sub-paragraph 8.3(4)(h) of the 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.
125. There is no independent or expert evidence that the Applicant’s offending, referred to by the Tribunal in these reasons, has caused physical or emotional trauma to Child L. In the absence of such evidence, the Tribunal is of the view that this sub-paragraph (h) of paragraph 8.3(4) of the Direction is of no weight and is not determinative of any finding.
Conclusion: Primary Consideration 3
126. The Tribunal makes the following findings:
(a) Child L is cared for by his respective parents, and the Applicant’s relationship with Child L is that of an uncle;
(b) the Applicant enjoys a close relationship with Child L, and presently resides with Child L and Child L’s parents;
(c)the Applicant has capacity to maintain contact with Child L via electronic means should this decision affirm the Applicant’s visa refusal; and
(d)the findings the Tribunal has made with respect to the relevant considerations in sub-paragraph 8.3(4) of the Direction.
127. In summary, the Tribunal is of the view that the best interests of Child L weigh moderately in favour of a decision to not refuse the Applicant’s visa. The Tribunal qualifies this finding by confirming that the weight the Tribunal has attributed to Primary Consideration 3 does not outweigh the heavy and determinative weight the Tribunal has attributed Primary Consideration 1.
Primary Consideration 4 – The Expectations of the Australian community
128. Paragraph 8.4(1) of the 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.
129. Paragraph 8.4(2) of the 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[88]).
[88] Direction No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, paragraph 8.4(3).
130. Paragraph 8.4(2) of the 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[89]), 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.
[89] Ibid.
131. Paragraph 8.4(4) of the 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.
132. The Tribunal also observes the following relevant principles in paragraph 5.2 of the Direction, that:
(a) The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;
(b) 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; and
(c)The nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome adverse to the non-citizen.
133. The Tribunal observes the Applicant arrived in Australia as a 20-year-old with his younger sister in November 2010, having resided in Australia for some eleven years. Whilst the Tribunal accepts the Applicant has resided here for some time, it has not been for most of the Applicant’s life. Soon after arriving, the Applicant met his wife (who is an Australian citizen) whom he married in October 2012 and remains married to.
134. There is evidence before the Tribunal the Applicant has contributed to the Australian community through his various forms of employment (including through owning his own transport business), with evidence before the Tribunal confirming the Applicant has paid income taxes[90]. The Tribunal acknowledges the evidence of the Applicant with respect to his efforts to positively contribute to the community following his convictions with respect to his various volunteering efforts[91].
[90] Exhibit G1, Section 501 G Documents, G21, pages 96 to 101.
[91] Transcript (2 November 2021), page 15, lines 24 to 46; Ibid, G19, page 94.
135. Tempering the Applicant’s contribution to the Australian community are his two drug related criminal convictions involving significant quantities of prohibited drugs, the nature of which the Tribunal has found is viewed seriously. In earlier reasons, the Tribunal detailed its views with respect to the harms which are caused through the Applicant’s actions facilitating the accessibility of a significant quantity of illegal drugs in the wider Australian community. The Tribunal has also found that there is more than a minimal or remote possibility of the Applicant reoffending.
136. The Tribunal observes in closing submissions from the Applicant, it was conceded that the Applicant understood that there is an expectation that non-citizens obey Australian laws whilst in Australia[92].
[92] Exhibit A7, Applicant Closing Submissions, page 8, paragraph 67.
137. In this matter, the Tribunal is of the view the Applicant’s offending conduct is such that the Australian community would expect that he should not be granted the visa (with reference to sub-paragraph 8.4(2) of the Direction).
138. The Tribunal notes the facts of the Applicant’s offending do not involve any of the types of offending identified in sub-paragraph 8.4(2)(a) to (f) of the Direction which raise “serious character concerns”. In view of this, the Tribunal affords this consideration a moderate weight in favour of refusal of the Applicant’s visa.
Conclusion: Primary Consideration 4
Having considered all the relevant factors, the Tribunal is of the view that Primary Consideration 4 weighs moderately in favour of visa refusal.
Other Considerations
139. It is necessary for the Tribunal to look at the Other Considerations listed at paragraph 9 of the Direction. The Tribunal will now consider each of the four sub-paragraphs 9.1 to 9.4 of the Direction.
International non-refoulement obligations
140. Paragraph 9.1 of the Direction requires decision makers to consider international non‑refoulement obligations. The Tribunal is of the view that the Applicant has not raised any particularised claim that his removal to Vietnam would engage any of Australia’s non-refoulement obligations. The Tribunal observes the Applicant has confirmed in submissions that international non-refoulment obligations do not apply to the consideration of his application[93].
[93] Ibid, page 9, paragraph 72.
141. The Tribunal has had regard to the requirements of paragraph 9.1 of the Direction and notes that the receiving country of the Applicant is Vietnam. The Tribunal is satisfied that Australia’s non-refoulement obligations are not engaged in relation to the Applicant.
Extent of impediments if removed
142. Paragraph 9.2 of the 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 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.
143. The Applicant is a 31-year-old male, and confirmed he had no concerns regarding his health[94]. The Applicant submitted to the Tribunal that his age and health do not provide an impediment if he were removed from Australia[95].
[94] Transcript (2 November 2021), page 47, lines 9 to 12.
[95] Exhibit A7, Applicant Closing Submissions, page 9, paragraph 73.
144. With respect to relevant considerations regarding substantial language or cultural barriers, the Applicant has submitted in closing submissions that, “… the most compelling evidence on this topic came from the Applicant’s younger sister, who explained to the Tribunal that although she and her brother know the words of the Vietnamese language, it is the way in which the language is used to communicate that her brother would have great difficulty in doing…”[96].
[96] Ibid, paragraph 76.
145. The Tribunal observes the above submissions of the Applicant seemingly contradict the pre-sentencing psychological assessment by Mr Jones dated 11 May 2020, where he prefaced this report stating, “… 3. The assessment was conducted with the assistance of Mr Ninh Nguyen a Vietnamese language interpreter…”[97]. The Tribunal is suspicious of the Applicant’s submissions in circumstances where he felt more comfortable conducting the pre-sentencing psychological assessment with the assistance of a Vietnamese interpreter. The Tribunal observes the Applicant confirmed that he can read and write in Vietnamese (as it is his first language) during the hearing[98].
[97] Exhibit R1, Section 501 G Documents, G12, page 67, paragraph 3.
[98] Transcript (2 November 2021), page 26, lines 15 to 19.
146. The Tribunal is of the view that in circumstances where the Applicant resided in Vietnam until he was 20 years of age, he would be familiar with the language and would have some familiarity with customs. Any issues arising from uncertainties regarding language or cultural barriers would be overcome in time.
147. The Tribunal accepts the Applicant’s parents are both presently residing in Australia and this would pose a challenge to the Applicant establishing himself should a decision be taken to affirm his visa refusal.
148. The Applicant has submitted to the Tribunal that he no longer has friends in Vietnam or pro-social networks, and that members of his extended family do not reside near where he would live and that they would not be able to provide economic or social support to the Applicant[99]. The Tribunal observes that the Applicant has made several trips back to Vietnam since he began residing in Australia, with the Applicant returning from his last trip in January 2016[100].
[99] Exhibit A7, Applicant Closing Submission, page 10, paragraphs 78 to 81.
[100] Exhibit R1, Section 501 G Documents, G13, page 78.
149. During the course of the hearing, the Applicant confirmed that he did have friends back in Vietnam but had not caught up with them as they had their only families, and when he returned to Vietnam, it was to spend time with his family rather than his friends[101]. The Tribunal is of the view that although the Applicant claims he has a lack of support and social networks back in Vietnam, should he return there in circumstances where a decision is taken to refuse to grant him a visa, this would likely be temporary until such time as the Applicant has been able to re-establish himself.
[101] Transcript (2 November 2021), page 44, lines 33 to 41.
150. Further, with respect to the Applicant’s claims regarding his lack of employability, the Tribunal is of the view that this too would likely be a temporary adjustment until such time as the Applicant is able to re-establish himself and find work.
151. The Applicant has proven to be resourceful in the time he has spent in Australia, establishing his own transport company and driving trucks. The Tribunal accepts that regulations may be different in Vietnam, however the Tribunal believes this would not be an insurmountable challenge for the Applicant to find work of a similar nature.
152. The Tribunal is of the view that with respect to this consideration, there are limited impediments regarding the Applicant’s removal to Vietnam in circumstances where a decision is taken to affirm his visa refusal. In light of these reasons, the Tribunal finds this Other Consideration in paragraph 9.2 of the Direction is of only a slight weight in favour of granting the Applicant his visa.
153. The Tribunal qualifies this finding by confirming that the weight the Tribunal has attributed to this Other Consideration does not outweigh the heavy and determinative weight the Tribunal has attributed to Primary Consideration 1, supported to a lesser extent by the moderate weight the Tribunal has afforded Primary Consideration 4.
Impact on victims
154. Paragraph 9.3 of the 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.
155. In the absence of any evidence submitted to the Tribunal for consideration with respect to the impact of non-revocation on the victims of the Applicants offending, the Tribunal cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa and is afforded neutral weight.
Links to the Australian community
156. 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.
Strength, nature and duration of ties to Australia
157. Sub-paragraph 9.4.1(1) of the 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.
158. The Tribunal observes the Applicant’s wife (an Australian citizen), both his siblings (the eldest of whom is an Australian citizen, and the youngest of whom is a permanent resident) all reside in Australia. The Applicant provided evidence to the Tribunal that both his parents are currently residing in Australia and plan to permanently move here (observing no evidence was presented that the Applicant’s parents have a right to remain in Australia indefinitely). The Tribunal notes the Applicant’s parents reside in the same household as the Applicant and his wife, the oldest sister of the Applicant and her husband, in addition to Child L.
159. The Applicant gave evidence to the Tribunal that he currently shares the cost of living in the house with his sister, whilst also financially supporting his parents in Australia (as they are non-citizens he pays for their medical and household expenditure such as groceries to assist them). Additionally, the Tribunal heard evidence that the Applicant provides ad hoc financial support to his younger sister when they see each other in person.
160. The Tribunal accepts that there is not just an emotional hardship from the separation of the Applicant from his family, identified by the Tribunal in the above reasons (particularly that of his wife, whom he has been married to for some nine years), but a financial impost would be borne with respect to the financial support he provides to his family members. The Tribunal acknowledges continued financial support from the Applicant would be limited should a decision be taken to affirm the refusal of the Applicant’s visa.
161. The Applicant also financially supports his wife. The Tribunal heard evidence from Ms Nguyen that the couple are currently saving the income of the Applicant’s wife (who is employed full time as a solicitor) in order to purchase their own home, and to one day start a family. The Tribunal also accepts the evidence submitted from the Applicant regarding the effect of these proceedings on the mental health of his wife and appreciates the impact this will have on the Applicant’s wife, their marriage, and future plans should a decision be taken that would result in the Applicant not being granted a visa to remain in Australia[102].
[102] Exhibit A6, Applicant Submission – Dr Peter Ly.
162. Additionally, the Tribunal heard evidence that both the Applicant’s parents in law reside in Australia and are Australian citizens. The Tribunal accepts that should a decision be taken to affirm the refusal of the Applicant’s visa, they too would suffer emotionally.
163. In summary, the Tribunal is of the view that with respect to the Applicant’s immediate family members in Australia and the consideration of sub-paragraph 9.4.1(1) of the Direction, it is of a strong weight in favour of the Applicant being allowed to remain in Australia.
164. Sub-paragraph 9.4.1(2) of the 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.
165. The Tribunal has, in earlier reasons, referred to the Applicant residing in Australia from late 2010, with the Applicant not committing his first offence until September 2016. The Tribunal accepts the Applicant did not begin offending soon after his arrival and has therefore not limited the weight which may be afforded to the Applicant (with respect to the consideration in sub-paragraph 9.4.1(2)(a)(i) of the Direction), given his first offence occurred some six years after his arrival in Australia.
166. In earlier reasons, the Tribunal referred to the evidence before it regarding the Applicant’s contribution to the Australian community through his various forms of employment (including through owning his own transport business), with additional evidence before the Tribunal confirming the Applicant has paid income taxes[103]. Additionally, the Tribunal accepts the evidence of the Applicant with respect to his efforts to positively contribute to the Australian community following his convictions with respect to his various volunteering efforts[104].
[103] Exhibit R1, Section 501 G Documents, G21, pages 96 to 101.
[104] Transcript (2 November 2021), page 15, line 46; Ibid, G19, page 94.
167. The Tribunal is of the view that a moderate measure of weight should be afforded to the Applicant in terms of applying sub-paragraph 9.4.1(2)(a)(ii) of the Direction on the basis of the Applicant’s modest contribution to the Australian community and through his employment.
168. Sub-paragraph 9.4.1(2)(b) of the Direction requires decision makers to have regard to the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
169. The Tribunal in earlier reasons has accepted the close and supportive relationship the Applicant has with the family identified by the Tribunal, particularly that of his wife whom he has been married to for some nine years. Ms Nguyen has given evidence that it is unlikely that she would follow her husband to Vietnam as she does not see her future there in circumstances where a decision is taken to affirm the refusal of the Applicant’s visa.
170. Additionally, the Tribunal accepts that several of the Applicant’s friends and a former employee have provided submissions in support of him, and notes the ties he has with these individuals, and the impact the refusal of his visa would have on them[105].
[105] Exhibit A5, Applicant Statement of Facts, Issues and Contentions, pages 18 to 23; pages 35 to 36.
171. In applying paragraph 9.4.1(2)(b) of the Direction, the Tribunal has had regard to the Applicant’s family and social links and is of the view that this attracts a strong measure of weight in favour of the Applicant.
172. Overall, the Tribunal has applied a strong measure of weight to this Other Consideration, but notes this weight is outweighed by the heavy and determinative weight the Tribunal has attributed Primary Consideration 1, supported to a lesser extent by the moderate measure of weight the Tribunal has given Primary Consideration 4.
Impact on Australian business interests
173. Paragraph 9.4.2 of the 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.
174. The Tribunal observes the Applicant conceded in closing submissions to the Tribunal that his, “product distribution company” or trucking business (which has in the past intermittently employed a person) is not a major project as stipulated in sub-paragraph 9.4.2(3) of the Direction[106].
[106] Exhibit A7, Applicant Closing Submissions, page 11, paragraphs 95 and 96.
175. The Tribunal has had regard to the considerations outlined in paragraph 9.4.2 of the Direction and is satisfied that an impact on Australian business interests is not relevant to the factual circumstances of the Applicant as there is no corroborative evidence before the Tribunal that the Applicant is involved in the delivery of a major project, or delivery of an important service in Australia.
176. The Tribunal notes that the Applicant owns a trucking company, through which he has intermittently employed another person to deliver products to customers. In the Tribunal’s view, the inability of the Applicant’s relatively modest delivery company to deliver products to customers does not raise any substantial claim with respect to this consideration within the Direction, and notes that no particularised claims were made by the Applicant during his evidence, nor in written submissions to the Tribunal.
Summary: Other Considerations
177. The application of the Other Considerations in the matter before the Tribunal can be summarised as follows:
(a)International non-refoulement obligations: are not engaged in relation to the Applicant.
(b)Extent of impediments if removed: a slight measure of weight is attributable in favour of the Applicant.
(c)Impact on victims: is of neutral weight.
(d)Links to the Australian community:
(i)Strength, nature and duration of ties to Australia: a strong measure of weight in favour of the Applicant.
(ii)Impact on Australian business interests: is of no weight.
178. The Tribunal is of the view that, to the extent that any of these Other Considerations as outlined in paragraphs 9 to 9.4.2 of the Direction, weigh in favour of revocation of the Applicant, they are outweighed by the determinative and heavy weight the Tribunal has attributed Primary Consideration 1, supported to a lesser extent by the moderate weight the Tribunal has attributed to Primary Consideration 4.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
179. As outlined in earlier reasons, there are two considerations regarding the decision to refuse the Applicant’s visa:
(a)whether the Applicant passes the character test, as defined in section 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the discretion in section 501(1) of the Migration Act should be exercised to refuse to grant the Applicant a Permanent Residence (Spouse Visa) (Class 801).
180. The Tribunal has found there to be more than a minimal or remote risk of the Applicant engaging in criminal conduct should he be allowed to remain in Australia with respect to the consideration of section 501(6)(d)(i) of the Migration Act. After also having regard to the requirements of paragraph 6 of section 2 of the Direction, the Tribunal has consequently found the Applicant does not pass the character test, as defined in section 501(6) of the Migration Act.
181. The Tribunal gave consideration to the secondary question regarding the exercise of the discretion in section 501(1) of the Migration Act to refuse to grant the Applicant a Permanent Residence (Spouse Visa) (Class 801) visa, which in turn required the Tribunal to consider the application of the Direction. With respect to this consideration, the Tribunal has found the following with respect to the Primary Considerations referred to in the Direction, and made the following findings:
(i) Primary Consideration 1 weighs heavily in favour of refusal of the Applicant’s visa;
(ii)Primary Consideration 2 is not relevant to the factual circumstances of the Applicant and therefore of no weight and not determinative of any consideration;
(iii)Primary Consideration 3 weighs moderately in favour of the Applicant; and
(iv) Primary Consideration 4 weighs moderately in favour of refusal of the Applicant’s visa.
182. The Tribunal is of the view that, to the extent that any of the Other Considerations (pursuant to paragraphs 9 to 9.4.2 of the Direction) weigh in favour of revocation of the mandatory visa cancellation decision, even when combined with each other and Primary Consideration 3, they do not outweigh the heavy and determinative weight the Tribunal has attributed to Primary Consideration 1, supported to a lesser extent by Primary Consideration 4.
183. It is the Tribunal’s opinion that a holistic view of the considerations in the Direction favours the refusal of the Applicant’s visa.
184. Consequently, the Tribunal cannot exercise the discretion pursuant to section 501(1) of the Migration Act in favour of the Applicant.
DECISION
185. 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 16 August 2021, to refuse an application made by the Applicant to grant a Permanent Residence (Spouse Visa) (Class 801) visa.
I certify that the preceding 185 (one-hundred and eighty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola
................[SGD].................................
Associate
Dated: 22 November 2021
Date of hearing:
2 November 2021
Applicant:
Counsel for the Applicant:
Solicitor for the Applicant:
Mr Van Hai Nguyen
Mr Steven Doupe
Mr Thanh Nguyen
Solicitor for the Respondent:
Ms Charlotte Saunders
Minter Ellison
ANNEXURE 1 – EXHIBIT REGISTER
| Exhibit Number | Description of Exhibit | Party | Date of Document | Date of Receipt |
| A1 | Applicant Submissions (pages 1 to 4) | A | 17 June 2021 | 2 September 2020 |
| A2 | Applicant Submissions Attachment 1 – Crown Tender Bundle (pages 1 to 15) | A | Various dates | 2 September 2020 |
| A3 | Applicant Submissions Attachment 2 – Defence Tender Bundle (pages 1 to 36) | A | Various dates | 2 September 2020 |
| A4 | Applicant Submissions Attachment 3 – Indictment No: 2016/00279239 (pages 1 to 5) | A | Undated | 2 September 2020 |
| A5 | Amended Applicant Statement of Facts, Issues and Contentions (pages 2 to 5) - Replaced SFIC filed 05 October 2021 Witness Statements (pages 6 to 23) | A | 13 October 2021 | 13 October 2021 |
| A6 | Applicant Submission – Letter from Dr Peter Ly | A | 16 October 2021 | 27 October 2021 |
| A7 | Applicant Closing Submissions (pages 1 to 12) | A | 3 November 2021 | 3 November 2021 |
| R1 | Section 501G Documents (pages 1 to 124) | R | Various dates | 16 September 2021 |
| R2 | Summonsed Documents (pages 1 to 80) | R | Various dates | 25 October 2021 |
| R3 | Respondent Statement of Facts, Issues and Contentions (pages 1 to 12) | R | 22 October 2021 | 25 October 2021 |
| R4 | Respondents Closing Submissions (pages 1 to 4) | R | 03 November 2021 | 3 November 2021 |
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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