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

[2021] AATA 2055

Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2055 (22 June 2021)

Division:GENERAL DIVISION

File Number:          2021/1988

Re:Nam Van Nguyen

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member R Maguire

Date of decision:           22 June 2021

Date of written reasons:        1 July 2021

Place:Brisbane

The decision under review is affirmed.

.......................[SGD].................................................

Member R Maguire

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Class BF Transitional (Permanent) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 - decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007. (Cth)

Crimes Act 1900 (NSW)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases

Al Hashimi v Minister for Immigration and Citizenship [2012] AATA 534

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337

GVSW and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] AATA 1015

Khalil v Minister for Home Affairs [2019] FCAFC 151

Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

TVCA and Minister for Immigration and Citizenship [2013] AATA 309

Secondary Material

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of .a visa under section 501CA

REASONS FOR DECISION

Member R Maguire

1 July 2021

INTRODUCTION AND BACKGROUND

1. The Applicant seeks the review of a decision of a delegate of the Minister (“the Respondent”) dated 30 March 2021,[1] made pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the decision made under subsection 501(3A) of the Act to cancel the Applicant’s Class BF Transitional (Permanent) visa (“the visa”).

   [1] Exhibit G1, Section 501 G documents, G2, pages 9-26.

2. Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period, provided in the Migration Regulations 1994 (Cth) (28 days in accordance with reg. 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under section 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked.

3. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act the person has a substantial criminal record as defined by section 501(7). Relevantly, section 501(7) states:

   (7) For the purposes of the character test, a person has a substantial criminal record if:

   …

   (c) the person has been sentenced to a term of imprisonment of 12 months or more;…

4. The Applicant is a 45-year-old male citizen of Vietnam who first arrived in Australia on 21 May 1992 at the age of 16 years,[2] and has not departed since.[3]

   [2] Ibid, G6, at page 54.

   [3] Ibid, G34 at page 219.

5. On 19 August 2019, the Applicant was convicted in the Australian Capital Territory Magistrates Court of multiple offences including “Act of Indecency Without Consent” for which he was sentenced to a head sentence of 28 months imprisonment with a non-parole period of 18 months.[4]

   [4] Ibid, G3, page 28.

6. On 9 January 2020, whilst the Applicant was serving a term of imprisonment (that is, in actual criminal custody) the Respondent, pursuant to section 501(3A) of the Act, decided to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test owing to his substantial criminal record (section 501(6)(a) of the Act), on the basis of section 501(7)(c) of the Act i.e. that he had been sentenced to 12 months or more imprisonment.[5]

   [5] Ibid, G7, page 53-57.

7. Notice of this decision was given to the Applicant by hand on 9 January 2020.[6] In accordance with reg. 2.52(2)(b) of the Migration Regulations 1994 (Cth) the Applicant was invited to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant requested revocation by the Minister of the mandatory cancellation within the period and in the manner specified.[7] 

   [6] Ibid.

   [7] Ibid, G9, pages 63-64.

8. On 30 March 2021, the Respondent decided not to revoke the visa cancellation decision made under section 501(3A) of the Act,[8] and on 2 April 2021 the Applicant made the present application to this Tribunal for a review of that decision.[9] The Tribunal has jurisdiction to review this decision pursuant to section 500(1)(ba) of the Act.[10]

   [8] Ibid, G2, page 9.

   [9] Ibid, G1, pages 3-5.

   [10]    The Act, section 500(6B).

9. The hearing of the instant application took place on 3, 4, 7, 8, and 21 June 2021. The Applicant appeared via video link and was represented by Mr Sean Kikkert. Mr Will Sharpe of HWL Ebsworth Lawyers appeared for the Respondent. The Tribunal received oral evidence from the Applicant, who was in the migration zone on shore in Australia. The Tribunal also heard evidence from the Applicant’s mother and sister.

10. The complete suite of written material forming the exhibit record is further particularised in the Exhibit Annexure attached hereto and marked “A”.

11. By operation of section 500(6L)(c) of the Act, when an application is made to the Tribunal under section 501CA(4) of the Act, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1), the Tribunal is taken at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) to affirm the decision under review. At the hearing, the parties agreed that for the purpose of this review, and section 500(6L)(c), the 84^th day was Tuesday 22 June 2021.

    ISSUES

12. Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:

    1)The Minister may revoke the original decision if:

    (a)the person makes representations in accordance with the invitation; and

    (b)the Minister is satisfied:

    (i)     that the person passes the character test (as defined by section 501); or

    (ii)    that there is another reason why the original decision should be revoked.

13. It is not disputed that the Applicant has made the representations required by section 501CA(4)(a) of the Act.

14. There are therefore two issues presently before the Tribunal:

    a)whether the Applicant passes the character test; or

    b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

15. If the Applicant succeeds on either ground, the cancellation of the Applicant’s visa should be revoked.

16. In considering section 501(CA(4), it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[11]

    …there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[12]

    [11] [2018] FCAFC 151.

    [12] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016)153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

    DOES THE APPLICANT PASS THE CHARACTER TEST?

17. The character test is defined in section 501(6) of the Act. Under section 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in section 501(7). Section 501(7)(c) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

18. As noted above, on 19 August 2019, the Applicant was convicted in the Australian Capital Territory Magistrates Court and was sentenced to a total head sentence of 28 months imprisonment.[13] 

    [13]    Exhibit G1, G Documents, G3, page 28.

19. As the custodial term imposed was “a term of imprisonment of 12 months or more”, the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in section 501(7)(c) of the Act.

20. At the hearing, the Applicant’s counsel conceded that he does not pass the character test as prescribed by section 501 of the Act.

21. The Tribunal therefore finds that the Applicant does not pass the character test pursuant to section 501(6)(a) of the Act and that the Applicant therefore cannot rely on section 501CA(4)(b)(i)[14] of the Act for the mandatory cancellation of his visa to be revoked.

    [14]    Note: This provides that the Minister is satisfied that the person passes the character test (as defined by section 501).

22. The remaining question therefore is found in section 501CA(4)(b)(ii), namely whether there is another reason why the original decision should be revoked.

    IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?

    Ministerial Direction No. 90

23. In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 90”) has application.[15]

    [15]    On 8 March 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 90.

24. The purpose of the Direction as stated in paragraph 5.1(4) is to guide decision-makers in performing functions or exercising powers under sections 501 and 501CA of the Act

25. Paragraph 5.2 of the Direction sets out the principles which bind this Tribunal:

    The principles below provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.

    (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 measureable risk of causing physical harm to the Australian community.

26. Paragraph 6 of the Direction requires that, informed by the principles in paragraph 5.2, decision-makers must take into account the considerations in sections 8 and 9, where relevant to the decision.

27. Paragraph 7(1) of the Direction provides that in applying the considerations, (both primary and other) information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

28. Paragraph 8 of the Direction sets out the following primary considerations in making a decision under section 501(1), 501(2), or 501CA(4):

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the best interests of minor children in Australia; and

    (4)expectations of the Australian community.

29. The Other Considerations which must be taken into account are provided in a
    non-exhaustive list in paragraph 9 of the Direction. These considerations are:

    (a)international non-refoulement obligations;

    (c)extent of impediments if removed;

    (d)impact on victims;

    (e)links to the Australian community, including

    i)strength, nature and duration of ties to Australia;

    ii)impact on Australian business interests.

30. The Tribunal now turns to a more detailed consideration of Direction No 90.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

31. In considering Primary Consideration 1, paragraph 8.1(1) of the Direction requires that decision-makers should keep in mind the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision makers are to have regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are and have been law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.

32. Paragraph 8.1(2) of the Direction requires consideration to be given to:

    (a)the nature and seriousness of the non-citizen’s conduct to date; and

    (b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    Nature and seriousness of conduct

33. Paragraph 8.1.1(1) of the Direction requires that in considering the nature and seriousness of the non-citizen’s offending or other conduct to date, decision makers must have regard to the following:

    a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    i)        violent and/or sexual crimes;

    ii)     crimes of a violent nature against women or children, regardless of the sentence imposed;

    iii)    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    ii)     crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    iii)    conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

    iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention or an offence against section 197A of the Act, which prohibits escape from immigration detention;

    c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii), or (b)(i) above, the sentence imposed by the Court for a crime or crimes;

    d)   the frequency of the non-citizen’s offending and/or whether there is any trend of        increasing seriousness;

    e)   the cumulative effect of repeated offending;

    f)whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

    g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

    Risk to the Australian Community

34. Paragraph 8.1.2(1) of the Direction requires that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk in the future becomes lower as the seriousness of the potential increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated maybe unacceptable.

35. Paragraph 8.1.2(2) of the Direction requires that in considering the risk that maybe posed by the noncitizen to the Australian community, decision-makers must have regard to, cumulatively:

    a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    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).

    c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN

1. Paragraph 8.2(1) of the Direction reflects the Government’s serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

2. Paragraph 8.2(2) of the Direction provides that the consideration of family violence is relevant in circumstances where:

   a)the non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven, howsoever 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 section 501 or section 501 CA has been afforded procedural fairness.

3. Paragraph 8.2(3) of the Direction requires that in considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:

   a)the frequency of the noncitizen’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 name 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 abuse and witness of that abused (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 non-citizen’s migration status should the non-citizen engage in further acts of family violence.

   PRIMARY CONSIDERATION 3 - BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

4. Paragraph 8.3 (1) of the Direction requires decision-makers making a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of child affected by the decision.

5. Paragraph 8.3 (2) of the Direction provides that this consideration applies only if the child is, or would-be, under 18 years old.

6. Paragraph 8.3(3) of the Direction provides that if there are two or more children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

7. Paragraph 8.3(4) of the Direction provides that in considering the best interests of the child, the following factors must  be considered where relevant:

   a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

   b)the extent to which the non-citizen is likely to play a positive   parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

   c)the impact of the non-citizen's prior conduct, and any likely   future conduct, and whether that conduct has, or will have a  negative impact on the child;

   d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

   e)whether there are other persons who already fulfil a parental role in relation to the child;

   f)any known views of the child (with those views being given  due weight in accordance with the age and maturity of the child);

   g)evidence that the 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;

   h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's   conduct.

   PRIMARY CONSIDERATION 4 - EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

8. Paragraph 8.4 of the Direction details the expectations with the of the Australian Community as follows:

   (1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach to 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.

   (2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, maybe appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through  conduct, in Australia or elsewhere, of the following kind:

   (a)      acts of family violence; or

   (b)    causing a person to enter it 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” includes 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 the 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.

   (3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

   (4)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 above, without independently assessing the community’s expectations in the particular case.

   OTHER CONSIDERATIONS

9. Paragraph 9 of the Direction requires decision-makers to take into account other considerations, including, (but not limited to):

   a)international non-refoulement obligations (in accordance with paragraph 9.1);

   b)extent of impediments if removed (in accordance with paragraph 9.2);

   c)Impact on victims (in accordance with paragraph 9.3);

   d)Links to the Australian community (reflecting the principles in paragraph 5.2 and paragraphs 9.4.1 to 9.4.2), including:

   i.strength, nature and duration of ties to Australia;

   ii.impact on Australian business interests.

10. The Tribunal now turns to a consideration of the evidence having regard to the Direction.

    EVIDENCE BEFORE THE TRIBUNAL

    Documentary Evidence

11. On 14 January 2020, the Applicant submitted a request for revocation form to the Department,[16] followed by a personal circumstances form on 15 January 2020.[17]

    [16] Exhibit G1, Section 501 G Documents, G9, pages 63-66.

    [17] Ibid, G10 pages 67-82.

12. In the Personal Circumstances form, the Applicant listed no minor children of his own. Regarding other minor children impacted by his visa decision, the Applicant nominated his niece “H” born in 2003 who has since turned 18 years of age, and another niece “A” born in 2006, as well as his two nephews “M” born in 2011, and “T”, born in 2012. The Applicant’s sister is the mother of these children.[18]

    [18] Ibid, G10, page 74.

13. Regarding his niece A, the Applicant said that he had not formed any close relationship with her.[19] Regarding the other three children, the Applicant said that he had not had anything much to do with them because they live in Port Macquarie.[20] He has met the older boy M several times, but had only met T once. Regarding all of the children, the Applicant stated, “I know them and love them but I can’t say I have a real relationship or a significant role in their lives.”[21]

    [19] Ibid, G10, page 75.

    [20] Ibid.

    [21] Ibid.

14. The Applicant also listed his mother, born in 1955, two sisters born in 1978 and 1983, and two brothers born in 1981 and 1993 as being impacted by his visa decision. They are all Australian citizens residing in Australia.[22] The Applicant also listed two maternal aunts and uncles of unknown birthdates resident in Vietnam as Vietnamese citizens. The Applicant stated he had not seen these relatives since he left Vietnam in 1988. He said he had no idea how they would react to his circumstances, and that he did not know them.

    [22] Ibid at page 76.

15. In a response to a question on his personal circumstances form regarding factors to help explain his offending, the Applicant said he faced difficult circumstances when he left Vietnam with relatives in 1988 at the age of 12 prior to his arrival in Australia in 1992. Notwithstanding his assertion that he had travelled with some relatives, the Applicant also said that he was alone at that age, with no one really caring for him. His parents and siblings arrived later and were detained until they were accepted as refugees in 1992. The Applicant blamed unspecified experiences in around that time as the probable cause of his schizophrenia and his reluctance to communicate. He said that without medication he hears horrible voices in his head. At the time of his personal circumstances form, the Applicant was waiting for the processing of applications for pre-parole programs on drug and alcohol and social behaviour.

16. The Applicant’s memory left him uncertain as to whether he had received prior warnings from the Department regarding his visa status.

17. The Applicant indicated that he did not believe that he would reoffend again, and referred to his period of good behaviour between 2003 and 2018. He stated that for some reason, in 2018 his prescribed dosage of medication became inadequate, and his schizophrenia took over. He heard voices in his head and he became badly disoriented. He said he did not mean anyone any harm at the time. He entered a house thinking it was his own and that he could find somewhere to sleep as he felt so unwell. He said that he believed that as long as he could receive ongoing medication, he would not reoffend.

18. Regarding the strength, nature, and duration of his ties to Australia, the Applicant stated that he did a nine-month course at an Introductory English Centre in Canberra following his arrival in Australia, before undertaking years 11 and 12 (uncompleted) at Copeland College.

19. The only employment history provided by the Applicant was that he had done farm work with his father for an unspecified period of time during 1995, although he was uncertain of the year. He stated that he had been unemployed since and spent time on the disability support pension. Regarding his contribution to Australian society, the Applicant stated that he done community work and child assistance in after-school care from about 1998 to 2000.

20. The Applicant stated that he believes members of the Vietnamese community would be sad if he were moved from Australia as they know he is mentally ill. The Applicant stated that he was currently receiving 150 mg injections of paliperidone once a month.

21. The Applicant expressed concerns about returning to Vietnam, as he has no family or friends there and nowhere to live. He said he had no job and no means of supporting himself and would not be able to get the medication or treatment he needs. He was not facing criminal charges or convictions in Vietnam, but would be homeless there.

22. The Applicant expressed concern that on his return to Vietnam, he would be without medication, and his schizophrenia would take over his mind, and he would not be able to control himself. He said that to him, Vietnam is a foreign country.

23. The Applicant also provided medical records which the Tribunal has considered.[23]

    [23] IbidG12; Exhibit A4, Clinical Records produced under summons by Canberra Hospital.

24. The Applicant also provided a statement dated 14 January 2020 from LeHoa Lam, President of the Vietnamese Senior Association in Canberra, and a statement from Thi Van Truong dated 26 January 2020, both of whom were friends of the Applicant.[24]

    [24] Ibid, G13, pages 95 – 98.

25. LeHoa Lam stated that:

    [the Applicant’s] “bad friends persuaded him to use Marijuana and Heroin again which he had tried to give up but unsuccessful! Sadly after a few times being in and out of the Rehabilitation Centre at Canberra Hospital, [the Applicant] got involved with some worse drug, called ICE. Being mentally unstable, [the Applicant] was unable to decline his friends’ invitation to take the drug which caused him to lose his sense of judgement and became hallucinated (sic) that caused him doing the wrong things and ended up being in jail.

26. LeHoa Lam also said that social, cultural, and language differences put the Applicant under a lot of emotional stress, and that his father’s death after 10 years living in Australia also affected him mentally and emotionally. LeHoa Lam said that the Applicant was a mentally ill patient who needs to be cared for by his loving mother because being cared for by a stranger would “only worsen his mental conditions”.

27. Thi Van Truong stated that:

    [The Applicant] seemed to immerse in lots of social troubled-making activities soon after his family settled in Australia. [The Applicant] has been known for involving with some bad friends for a long time, who enticed him into drugs. Several times his mother cried to beg him to change his way of life.… [The Applicant’s] mother told me that [the Applicant] will not be able to survive in Vietnam due to his mental illness. [The Applicant] will be like a foreigner in Vietnam. Besides, he doesn’t speak Vietnamese fluently anymore. [The Applicant] is basically entering a dead end which is very painful for himself, for his mother and his siblings.

28. The Applicant provided an unsigned statement dated 26 May 2021 by his sister Thi Anh Nguyen.[25] Ms Nguyen described the circumstances of the Applicant’s departure from Vietnam, in 1988, in company with a distant cousin of their father, and how the Applicant was separated from his family for a period of two years, at which time he was young and impressionable. Ms Nguyen stated “[the Applicant] began experimenting with drugs while he was in the open camp.” She said that she believed his experiences in the camp as a refugee continued to affect him after they came to Australia. She said that following his arrival in Australia, the Applicant didn’t attend college even though he was enrolled, and fell into the wrong crowd. Between 1992 and 1995, he was often absent from home on occasions for a few weeks at a time, and up to a couple of months or longer. Ms Nguyen said that she understood the Applicant was consuming alcohol, marijuana and other drugs during these periods. This angered their father, who would complain about his non-attendance at school and sometimes hit him.

    [25]    Exhibit A2, Statement of Thi Anh Nguyen dated 26 May 2021.

29. Ms Nguyen described the circumstances leading up to the Applicant’s diagnosis with schizophrenia:

    One day in 1994 or 1995, a friend of [the Applicant] brought him home in a very bad state. [The Applicant] was shaking and seemed really frightened. I don’t know the name of this friend, and I wasn’t familiar with him. [The Applicant’s] eyes were rolling, and when my parents asked [the Applicant] questions, [the Applicant] didn’t seem to comprehend the questions at all. Mum and Dad screamed out that we needed to call an ambulance. After an ambulance took [the Applicant] to Calvary Hospital, a doctor asked [the Applicant] what year it was. [The Applicant] didn’t even know what year it was, let alone what month or day it was. He didn’t seem to know who we were either.

    A day or two later, [the Applicant] was diagnosed with schizophrenia. I think I was 14 or 15 at the time. Since that time, [the Applicant] has never been well mentally. People from the health centre would come and see him once a month to give him medication and injections. [The Applicant] has also been on a disability pension for almost 20 years due to his mental health.”

30. Ms Nguyen said that she thought the Applicant still thought of himself as if he was 13 or 14 years of age, describing him as Peter Pan. She said that the Applicant loves his mother very much, and that his mother would be absolutely devastated if he had to go back to Vietnam as would all his siblings including herself. She said that she seen him help their mother with vacuuming, taking out rubbish mowing lawns and helping her with other things. Their mother was approaching 66 years of age and gets arthritis in her hands. The Applicant massages her hands to help her feel better. She said that the Applicant’s deportation would have a domino effect on the whole family impacting all of the siblings and their children. She said that her children and her sister’s children would all greatly miss their uncle if his visa cancellation is not revoked.

31. Ms Nguyen described a history of mental illness in their family going back several generations, and said that there was not the same understanding of mental illness in Vietnam as there is in Australia, and that the Applicant would not get appropriate treatment for his mental illness in Vietnam. She did not elaborate on the basis for this statement.

32. The Applicant also provided an unsigned statement dated 26 May 2021, by his mother, Thi Luc Hoang.[26] Mrs Hoang described the Applicant as having been quite normal, well-behaved, respectful and obedient as a child. She described the circumstances of the Applicant’s departure from Vietnam and that he was placed in an open camp when he arrived in Hong Kong. The family arrived later and were placed in a closed camp, and were separated from the Applicant for a period of two years. She worried about the impact of his experiences in the camp on his mental health.

    [26]    Exhibit A3, Statement of Thi Luc Hoang, dated 26 May 2021.

33. Mrs Hoang also described the circumstances of the Applicant’s diagnosis of schizophrenia which reflected a similar account to that of her daughter. Regarding his most recent offending, she said that the Applicant had been “acting funny” a few days before the offences were committed, and she had asked him if he’d been taking his injections and he replied, “I haven’t taken injections for two months.”

34. Mrs Hoang stated that she would be “absolutely devastated” if the Applicant had to go back to Vietnam. She said he helped her, and gave evidence in line with the statement of her daughter that he assisted her around the house and massaged her hands. She also said that there is a history of mental illness in the family going back many years, that there isn’t the same understanding of mental illness in Vietnam as in Australia and he would not get appropriate treatment for his mental illness in Vietnam.

    Evidence at Hearing

35. The hearing of this matter was conducted via Microsoft Teams with the assistance of  Vietnamese Interpreters.

1. At the commencement of the hearing, Mr Sharpe observed that the Applicant had not provided any statement of evidence although there were submissions in the materials before the Tribunal that had been made on his behalf, and that this could potentially raise issues pursuant to the two-day rule in section 500(6H) and (6J) of the Act.

   Evidence in Chief of the Applicant

2. Mr Kikkert referred the Applicant to his personal circumstances form regarding his childhood in Vietnam.[27] The Applicant told the Tribunal that he was born in Vietnam and grew up there. He went to Kindergarten, and Grades 1 to 5 of school. He left Vietnam when he was 12 years old because his mother had arranged with his aunt for him to go to Hong Kong by boat, a trip he described as “a horrible journey”. His parents followed a couple of months later. He and his aunt rented accommodation and his parents and younger siblings were detained in a camp, and were later given refugee visas. He was away from his family for about two years from 1988 to 1990.

   [27] Exhibit G1, Section 501 G documents, G10, pages 77-80.

3. The Applicant said he found it difficult and traumatic travelling to and living in Hong Kong without his family. He was referred to his personal circumstances form where he stated, “things happened to me that I find very hard to talk about even now.” The Applicant said that he still found it hard to talk about what happened after he arrived in Hong Kong, because he cannot remember exactly what happened. He can only remember a few things.

4. The Applicant said that he did not feel lonely as he had people around him to talk to. He was referred to his statement that his experiences at this time contributed to his schizophrenia. He said that he had no idea about schizophrenia, but he is still taking medication and injections to help him deal with the problem. Regarding communication with other people, he said he does not need much but has no problem communicating with others. He could not remember aspects of his journey to Hong Kong.

5. The Applicant said that he receives paliperidone injections from his GP or a mental health worker once a month.

6. The Applicant said that he could not remember when he was first diagnosed with schizophrenia. He has hallucinations, hears voices, and feels things that are not really there.

7. The Applicant said that he has not been to Vietnam in 30 years, He arrived in Australia at the age of 16 years. His close family is in Australia. If he has to return to Vietnam there is no treatment for his mental health condition.

8. He was referred a report on patient progress from the Canberra Hospital for the period 14 December 1997 to 26 June 2009.[28]  He was read the first part of a passage, the whole of which was as follows:

   [The Applicant] attended a special school in Braddon to learn English and thereafter attended Ginninderra High School for a short period and Copeland College. He found it “very difficult” and left in 1994 halfway through Year 12. File note dated 24/1/96 [the Applicant] claims to have been expelled from Ginninderra High School for bashing another boy…

   [28]    Exhibit A4, Clinical Records produced under summons by Canberra Hospital, page 119.

9. The Applicant was unable to recall or comment on any of this passage.

10. Mr Kikkert referred the Applicant to his personal circumstances form,[29] where he had stated that he did not believe that he would re-offend again. When asked if he believed he would not re-offend again the Applicant said he did not believe anything. He said that he did chores to help his mother. The Applicant argued with his counsel, and objected to a number of his questions. He said his mother suffers from arthritis. He said that he did not help her with her arthritis, and did not know how to.

    [29] Exhibit G1, Section 501 G documents, G10, page 77.

11. When asked about his conviction in 2019, he said that he pleaded guilty. Referred to his criminal record, and his previous conviction in 2003, the Applicant said “I don't know, I don't care. I just don't - can't remember anything. I got here; I can't remember. Don't make me remember anything.”  The Applicant was referred to a statement from LeHoa Lam dated 14January 2020 where it was stated that he would be like a foreigner in his homeland, and that he could not survive without his mother. The Applicant said that he would not be accepted by the government in Vietnam and would have nowhere to live. He said he will be able to survive when his mother passes away. The Applicant said that he did not know how he would feel were he separated from his family in Australia, and did not know what impact separation would have.

    Cross Examination of the Applicant 

12. The Applicant said that he could read but he only understood about 20% to 10% of written English.

13. Following a brief adjournment, the Applicant did not reappear, and the matter was adjourned to 9:30 am on Friday 4 June 2021, at which time the hearing started late owing to the delayed arrival of the Applicant.

14. Under cross-examination the Applicant confirmed that he lived in Tam Duong village in the Thuy Nguyen district near Hai Phong city in Vietnam until he was 12 years old, and went to school there from year 1 to year 5, and learned to read and write in Vietnamese. He confirmed that he left Vietnam with an aunt and her child Huong, who was aged about 5 or 6. The aunt was a relative of his father, and her husband followed them to Hong Kong later. He lived with them (and the aunt’s second daughter) in Hong Kong. While in Hong Kong he was reunited with his parents after two years when they left a refugee camp. He continued to live with them until he came to Australia in 1992. In Australia he, his parents and siblings attended English language classes. The family spoke Vietnamese and English at home.

15. The Applicant said he presently speaks mainly Vietnamese to his family. He only uses the word “mum” in English when he speaks to his mother. Otherwise he speaks Vietnamese to her. His mother and younger brother and sister have been back to Vietnam, and his mother has been back four or five times most recently around June or July in 2020.

16. The Applicant was referred his revocation request.[30] The Applicant acknowledged his signature where it appeared on that document, and said that he had assistance from a migration agent, Ms Marion Le to complete the form, and that he had told her what to write. He said the he could read what was written, and confirmed he had read it when he signed it, and that Ms Le had not read to him what she had written, but said she was doing it for him.

    [30] Exhibit G1, Section 501 G documents, G9, page 63.

17. The Applicant was again referred to his personal circumstances form, and confirmed his signature. He said Ms Le also completed this form for him. He did not read it before he signed it. He had told her everything to write in the document, and he agreed with everything written in the document.

18. He was then read the following passage from his revocation request and agreed with the statements recorded:

    I sincerely regret all of the offences and events that have brought me before the courts on those four occasions. I ask the delegate to consider the fact of my serious mental health condition and take into consideration that I suffer from diagnosed paranoid schizophrenia. I first came to the attention of ACT Mental Health in around 1997 but it was not until around 2003 that my condition was largely stabilised through medication and constant assistance from the ACT Mental Health Unit and my GP and other doctors. On the occasion of my 2018 offence I was disoriented and hearing voices when I committed the offences with which I was charged.[31]

    [31] Ibid, page 65.

19. The Respondent then took the Applicant to the personal circumstances form which set out his family details. The Applicant confirmed his mother and four siblings all lived in Australia.  He has two uncles and one aunt who was close to the age of 70  living in a different village in Vietnam. He could not recall the ages of his uncles. His aunts and uncles have not visited Australia. The Applicant said he did not give Ms Le the information, and thought she may have obtained it from his mother and younger sister. He was not sure if his relatives in Vietnam knew of his visa cancellation, and did not know if they knew of his possible return to Vietnam.

20. The Applicant said his mother lives alone in Canberra, and his sister Anh lives in the next suburb. The Applicant said his brother Hoang lives with his mother occasionally, but he moves around. His sister Yen lives in Port Macquarie. His brother Phuong lives with his girlfriend and child in Canberra.

21. The Applicant said his brother’s child was not listed in his personal circumstances form as the child was born after the date the form was completed. The Applicant said that he has not met that child.

22. The Applicant was read extracts of a passage wherein he had stated with reference to his nephews and nieces:

    Because of my ongoing health problems I have not formed any close relationship with [niece A] though I know her of course and I love her but I cannot say we are close she is the youngest child my sister Anh and lives in Canberra. The other three children are the children of my sister Yen. I have not had anything much to do with them because they live in Port Macquarie.[32]

    [32] Ibid, G10, page 75.

23. The Applicant confirmed the accuracy of this statement, and said he had hardly spoken to niece A. He also confirmed what was written regarding his relationship with his sister Yen’s children that he didn’t have much to do with them and that he didn’t have a real relationship or a significant role in their lives. The Applicant said that he had not had any contact with the children since completing the form. The Tribunal notes that the form was completed on 15 January 2020, some 18 months prior to the hearing.

24. The Applicant confirmed that he had done farm work, and community work with the YMCA between 1998 and 2000. The Applicant said that he had worked as a chicken boner, and at a bakery, but denied having worked in hospitality. He could not remember when he worked in a bakery. He has been on a disability pension since around 2009, and has made no attempt to find paid employment since that time. The Applicant was referred to a record of the Canberra Hospital, where the doctor noted that he was obviously worried about losing the security of a disability allowance. The doctor stated:

    ”I suggested he look at getting part-time work which would enable him to earn up to an extra $60 per week without loosing (sic) his pension. I suggested he request a job capacity assessment as I felt he might get some training in an area he was more interested in (like cooking) and besides, he was too well now and too young to go on the pension scrap heap. [33]”

    [33] Ibid, G12, page 91.

25. The Applicant was referred to the letter from LeHoa Lam dated 14 January 2020 that had been lodged with his revocation request. The Applicant said that he had never met LeHoa Lam. He was then referred to the letter from Thi V Truong dated 26 January 2020 and said that he did not know her, and that his mother had asked her to help. The Applicant confirmed that he did not know these two people and they were friends of his mother. The Applicant said that he had friends but did not meet them often. He had no contact details for them to provide statements. He had not seen his friends since he went to prison.

26. The Applicant said that he is not in a current relationship, and it was a long time since he had a partner.

27. The Applicant said that he had used illicit drugs but could not remember using heroin. [34] He was referred to a pre-sentence report information form wherein it was recorded that he started using alcohol at age 15 and heroin at the age of 18 years.[35] The Applicant said he was not sure and could not remember starting to use heroin at the age of 18 and that he did not want to answer. It was also stated in that report that his reason for leaving school was due to heroin addiction. The Applicant said that this was not correct, and he did not want to answer further. Following a direction from the Tribunal to answer, the Applicant said that the information recorded in the report was what the police recorded and might not be correct. He denied that he left school because of a heroin addiction. He denied that he started using heroin at the age of 18 but agreed that he had started using heroin when he was about 27 or 28 years of age.

    [34]    Transcript, page 71 line 12.

    [35]    Exhibit R2, Respondent’s Amended Supplementary Documents, SG3, at page 41.

28. The Applicant was referred to, a pre-sentence report dated 11 March 1996, from the ACT Corrective Services Department addressed to the Presiding Magistrate in Canberra.[36] He was specifically referred to a passage at the second page of the report where it was recorded as follows:

    DRUG AND ALCOHOL FACTORS

    [The Applicant] stated that he first smoked heroin while living in Hong Kong. He stated that he made friends there with drug traders who would occasionally supply him with the drug. After immigrating to Australia he began to smoke “snow cones” (heroin sprinkled on cannabis) with friends regularly. He stated that he used the drugs daily until six months ago when he claims to have discontinued his drug us (sic) altogether as he realised it was “bad for me”

    [The Applicant] claimed his alcohol use began at age 17 years. He stated that he has been drinking socially with friends on weekends since then, and his alcohol use has not been problematic.

    [36]    Ibid, at page 68.

29. In response, the Applicant said he could not remember when he started using heroin.

30. The Applicant was referred to another ACT Corrective Services pre-sentence report to the Presiding Magistrate in Canberra dated 14 April 2003 and referred specifically to a passage of that report wherein it was stated under the heading ‘Drug and/or Alcohol History’:

    [The Applicant] has a history of alcohol and drug abuse. He indicated that since the last report was prepared in October 2001, and until his incarceration in December 2002, he was using cannabis and heroin on a regular basis. He was also consuming alcohol during this time, although he did not believe his alcohol consumption was problematic.[37]

    [37]    Exhibit R2, Respondent’s Amended Supplementary Documents, SG3, at page 54.

31. In response, the Applicant said he could not remember when he started using heroin.

32. The Applicant was then referred to an ACT Corrective Services Offender Intake Data Form dated 15 July 2019,[38] and was referred to where it was stated that his current drugs of choice were cannabis, which he commenced using at 25 years of age, methamphetamines, which he had commenced using one to two years ago, and heroin which he commenced using in Hong Kong, but denied currently using. The Applicant said that he used heroin once or twice a week after he settled in Australia in the mid-1990s. The Applicant said that he could vaguely remember that he did use heroin, but could not remember the exact time. He acknowledged that he started using methadone several times per week around 2002, and stopped taking it when he went to Alexander Maconochie Centre. The Applicant acknowledged that he had used methamphetamine “sometimes” and clarified that this meant a few times a week. He started using methamphetamine from 2012 to 2018. He agreed that this would have a bad effect on his mental health. The Applicant said that he could hear voices and could not eat or sleep or control himself. The doctors did not know that he used ice. The doctors told him not to use cannabis, but he continued to use one or two cones a day until 2018.

    [38]    Ibid, SG9, at pages 95-106.

33. The Applicant was referred to a patient progress report from the Canberra Hospital for the period 23 November 2018 to 25 November 2018, where it was reported that he “did not believe that ice exacerbated his psychotic symptoms”.[39] The report noted that he looked up, mumbled to himself and laughed and then said ‘the ice makes me happy.’” The Applicant denied saying that, and said that he was forced to say it. The report also noted that the Applicant had told the writer that “he wished to keep using ice”. The Applicant said that this was correct and he continued using it because it made him feel better.

    [39]    Ibid, SG3, page 28.

34. The Applicant was referred to an incident at about 4:15am on 17 March 2018 where the Applicant’s mother had called emergency services. An Australian Federal Police (“AFP”) report of the incident stated that:

    Police were eventually able to establish that [Redacted] 42 year old son [the Applicant], who lives with her at that location, had consumed alcohol and/or drugs and had caused a disturbance by walking around the house yelling and screaming bizarrely, before walking out into the street and into the darkness... Police established she called Police because of how strange [the Applicant] was acting and because she did not know what else to do.[40]

    [40]    Exhibit R2, Respondent’s Amended Supplementary Documents, SG13, page 285.

35. The Applicant was referred to a later incident on that same day recorded at 12:00pm where his sister called police. The police report stated:

    Comp calling on behalf of her mother – comp is interstate comp mother (redacted) just called comp saying her son is back at the house – he is scaring her. Talking to himself, has mental health issues and is damaging and destroying the property. Comp asked her mum to leave the hosue (sic) if she could and her mum doesn’t want to in case POI burns the house down. Police attended this address at about 03:00 this morning re similar circumstances.[41]

    [41]    Ibid at page 286.

36. The Applicant was referred to a further entry regarding this incident at where it was recorded:

    - …Police attended location after reports of disturbance at the location.

    …

    - The POI stated he had no current mental health conditions, is not taking any medication for any mental health disorders. The POI stated he currently only takes methadone daily for a former heroin habit.[42]

    [42]    Ibid at page 287.

37. The Applicant was then referred to an order of the ACT Civil and Administrative Tribunal dated 23 March 2018 whereby an order of 20 March 2018 that the Applicant be taken into involuntary detention for a period not exceeding three days made pursuant to the Mental Health Act 2015 (ACT) was extended for a period of not longer than eleven days.[43] The Applicant could not remember the episode. He remembered being sent to a psychiatric ward. He could remember being interviewed by doctors at the psychiatric ward, but not when.[44]

    [43]    Exhibit A4, Clinical Records produced under summons by Canberra Hospital at page 1970.

    [44]    Transcript, pages 90-91.

38. The Applicant referred to an application made to the ACT Civil and Administrative Tribunal for a Psychiatric Treatment Order on 29 March 2018.[45] The Applicant admitted that he had not been taking his medication for about three months leading up to March 2018. The application recorded:

    [The Applicant] is not able to communicate about his illness and not able to exhibit any commitment towards a management plan. He doesn't believe that he has a mental health problem. especially the diagnosis of schizophrenia, and has not been able to correlate between the voices he hears and the mental illness he has been diagnosed with over the last eighteen years.

    …

    Currently he is reluctantly taking Olanzapine 10 mg BD. His current acceptance is a sign he exhibits in order to accelerate his discharge from the inpatient ward. This acceptance doesn’t stem out from a true conviction that he is in need for it.

    His ability to weigh up the consequences and make a volitional choice of his own seems very impaired currently.

    [The Applicant] would decline treatment if he could. He stated clearly he will not take the depot medication. Moreover, he will not take his Olanzapine tablets once discharged from the hospital and will replace it by another type of medication by asking his GP. His preference is to be on no treatment and to be living in his mother’s place. His beliefs and illusions make it impossible to make a free choice of his own.[46]

    [45]    Exhibit A4, Clinical Records produced under summons by Canberra Hospital, at page 2060.

    [46]    Exhibit A4, Clinical Records produced under summons by Canberra Hospital at page 2064

1. When Mr Kikkert referred the Applicant to a Canberra Hospital patient progress report dated 26 May 2012 to 5 December 2014 at page 546[105] wherein it was recorded:

   [The Applicant] is refusing to take depot injection to stabilise his mental state saying that depot inj (sic) will in kill him. We believe that he is suffering from a psychotic illness that requires depot medication. He refuses to accept depot medication.

   The Applicant denied that he thought the injection would kill him and replied:

   No, I didn’t think, I don’t think that injection will kill me, but opposite. This injection help me to get some sleep, and yes I can eat. So it’s just only make it better for me rather than dangerous for me.[106]

   [105] Transcript page 136 line 32 – page 137 line 11.

   [106]  Transcript page 137 lines 9-11.

2. The Tribunal considers it highly improbable that hospital staff would falsely or erroneously record a statement to the effect that the Applicant thought his depot injections would kill him. The Tribunal therefore rejects the Applicant’s evidence denying the views that were attributed to him at the time.

3. There was insufficient evidence before the Tribunal that the Applicant has undertaken any course intended to curb his usage of illicit substances, and the Tribunal harbours concerns that he will continue to do so, as his usage appears to span nearly three decades.

4. In the light of the Applicant’s overall evidence, including the specific instances referred to above, the Tribunal draws no comfort from the Applicant’s assurance that he will save money and use prostitutes in order to deal with his sexual urges, an assurance which the Tribunal notes is untested in the community. The Tribunal also doubts that the Applicant will take appropriate medication in future.

5. The Tribunal notes that the Applicant has led an offence free existence for a long period of time, and that is to his credit. The prospect of his offending appears to hinge greatly on his capacity to abstain from use of illicit substances and alcohol and maintain his programme of prescribed medication. Regrettably, the Applicant’s general attitude, and history of non-compliance, is concerning. One example of this, (and there are numerous others referred to in the course of the hearing) appeared in the Canberra Hospital Patient Progress Report from 17 March 2018 to 5 April 2018 where in it was recorded[107] that he displayed minimal insight and judgment, and that Risk Issues identified were: “risk of aggression, risk of misadventure, risk of absconding, risk of self-harm”.[108] Other remarks recorded in the report appear typical of his attitude towards compliance:

   [107] Exhibit A4, Clinical Records produced under summons by Canberra Hospital at page 778

   [108] Exhibit A4, Clinical Records produced under summons by Canberra Hospital at page 778.

   Cognitive functions: He was oriented to time & date, place and persons. Fair attention and concentration.

   Insight was poor. Not welling (sic) to engage in management plan or taking his depot medications. He acknowledged that he will stop his oral medication after being discharged from the ward.

   Judgment: Was poor

   Risk

   Moderate Risk of deterioration of his mental state and physical health.

   Low risk of suicide or self-harm.

   Moderate risk of aggression towards others or to damage property.

   Impression

   Chronic schizophrenia in relapse due to non-adherence to medication.[109]

   [109] Ibid at page 779-780.

6. In the light of the totality of the evidence, the Tribunal is left with the impression that if the Applicant is returned to the community, it is a matter of when, not if, that he will elect to stop receiving the medications which are critical to his wellbeing, and capacity to abstain from further offending. Thus it appears likely it would only be a matter of time before the Applicant reoffended.

7. The Tribunal is of the view that there is a very real risk that the Applicant will commit further offences or engage in other serious conduct.

8. Consideration of paragraph 8.1.2 of the Direction must weigh against heavily revocation of the decision under review.

   CONCLUSION: PRIMARY CONSIDERATION 1 - PROTECTION OF THE AUSTRALIAN COMMUNITY

9. The Tribunal has had regard to the provisions of paragraphs 8.1.1 and 8.1.2 of the Direction and has also had regard to the principles set out at paragraph 5.2 of the Direction. The Tribunal finds that the nature of the Applicant’s offending conduct is very serious, and that there is a real likelihood that he will engage in further criminal or other very serious conduct if returned to the Australian community.

10. Having considered the entirety of the evidence and each of the relevant factors contained in the Direction, the Tribunal finds that Primary Consideration 1 weighs heavily in favour of non-revocation.

11. The Tribunal now turns to the considerations listed in paragraph 8.2 of the Direction.

    PRIMARY CONSIDERATION 2 – WHETHER THE APPLICANT ENGAGED IN FAMILY VIOLENCE

12. There is no evidence before the Tribunal that the Applicant has committed acts of family violence so as to warrant consideration of paragraph 8.2 of the Direction. This Primary Consideration is neutral.

13. The Tribunal now turns to the considerations listed in paragraph 8.3 of the Direction.

    PRIMARY CONSIDERATION 3 - THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

14. In accordance with Article 3 of United Nation’s Convention of the Rights of the Child, a decisionmaker should treat the best interests of any child under 18 as a primary consideration. This is in line with paragraph 8.3 of the Direction.

15. The Applicant has submitted that he has four nieces and nephews (one of whom is a newborn, who he is yet to meet) who are minor children who will be negatively impacted if his visa cancellation is not revoked. It has further been submitted that these minor children would lose their relationship with their uncle and would be negatively impacted if the decision is not revoked.

16. Whilst it is possible that these children may, in the future wish to develop a relationship with the Applicant, there is no clear evidence before the Tribunal that the Applicant has formed a meaningful relationship with any of these children, and there is very little reason to believe that the removal of the Applicant would have a negative impact on them. The state of the Applicant’s health suggests that he would be unlikely to play a positive parental role in the future in respect of any of these children. There is no evidence to suggest that the children will not continue to have the care support and guidance of their parents, or that this level of care, support and guidance is not sufficient for their needs. There is no evidence the Applicant is capable of, or would, provide for the care of the children in any way.

17. Accordingly, the Tribunal accepts the submission of the Respondent that this consideration weighs neither in favour of nor against the revocation of the cancellation of the Applicant’s visa.

    CONCLUSION: PRIMARY CONSIDERATION 3

18. The Tribunal gives neutral weight to this consideration.

19. The Tribunal now turns to the considerations listed in paragraph 8.4 of the Direction.

    PRIMARY CONSIDERATION 4 - THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

20. The Direction makes clear that it is not the function of the Tribunal to independently assess community expectations in this case, but to proceed on the basis of the Government’s views as articulated in the Direction.

21. The Tribunal gives weight to the very clear and unequivocal language of the simple proposition found in paragraph 8.4 (1) of the Direction. It is in these words: “The Australian community expects non-citizens to obey Australian laws while in Australia.”  Paragraph 8.4 (2) a) particularise as this expectation in circumstances of conduct involving acts of family violence.  The language could not be clearer. Neither could the Applicant’s failure to meet this expectation.

22. Not only has this Applicant breached his obligation to obey Australian law, there is an unacceptable real risk that he will do so again given the opportunity. The Tribunal believes the Australian community would expect that the Applicant should not hold a visa.

23. Moreover the Tribunal considers that in the circumstances of this case, paragraph 8.4(2)(c) of the Direction has application as the Applicant has committed a serious offence of a sexual nature against an “acutely vulnerable” 80 year old woman, and a serious violent offence involving a child, in each instance in the privacy of their respective homes.

    CONCLUSION: PRIMARY CONSIDERATION 4

24. The Tribunal finds that Primary Consideration 4 weighs heavily in favour of non-revocation.

    OTHER CONSIDERATIONS

25. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.

    9.1 International non-refoulement obligations

26. The Applicant has not claimed to fear harm if returned to Vietnam. This consideration is not relevant to determination of this application.

    9.2 Extent of impediments if removed

27. In considering the extent of impediments the Applicant may face in Vietnam in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), the Tribunal has taken into account that the Applicant is presently 45 years of age, and suffers from chronic schizophrenia. It has been submitted that if he is returned to Vietnam, he could be deprived of the essential support of his mother and family. However the Applicant told the Tribunal that if he remains in Australia, it is not his intention to live with his mother long-term, and he has not stated any intention of living with other members of his family. The Applicant’s mother has given evidence that in the event he is returned to Vietnam, she will accompany him and care for him, so in this event the adverse impact on him of relocation should be significantly lessened.

28. The Tribunal heard evidence that the Applicant’s relatives in Vietnam are unlikely to provide him support, however there was no direct evidence of this, and the Tribunal gives this evidence little weight.

29. The Applicant and his mother each gave evidence that they communicate in Vietnamese, and the Tribunal therefore rejects the submission that he “no longer speaks Vietnamese fluently” a submission which in any event seemed to be compellingly contradicted by his reliance on an interpreter at the hearing.

30. The Applicant lived in Vietnam until he was aged 12 years, and the Tribunal is not satisfied that he will encounter any substantial cultural barrier on his return.

31. It was also submitted that the Applicant needs the government and community services available to him in Australia, and that these would not be available in Vietnam, however beyond the assertion of the witnesses, there was no independent evidence to support this contention, and the Tribunal gives it little weight. Moreover, the Respondent’s SFIC, at paragraphs 77-78 stated:

    77. “The 2018 article, “Treatment and recommendation differences for schizophrenia and major depression: a population-based study in a Vietnamese cohort”, in the International Journal of Mental Health Systems states that mental health services in Vietnam are provided under a community-based mental health program that includes free access to essential psychotropic medicines, including schizophrenia (p. 2.). There are also financial and social support offered to patients with severe mental disorders. Schizophrenia is one of the three most common disorders treated in psychiatric hospitals in Vietnam, accounting for 60% of patients.

    78. An article appearing in the old on Taiwanese Journal of Psychiatry in 2017 (“Mental Health Care in Vietnam”) reported that there were then 36 psychiatric hospitals in Vietnam, and that most provinces have mental hospitals or “Prevention and Control Centres for Social Diseases” which treat social diseases and take care of chronic mental patients.

32. As discussed earlier in these reasons, mental health care in Vietnam has progressed significantly, particularly over the past twenty years, and presents a far rosier picture than was painted by the evidence on behalf of the Applicant.

33. The Respondent also acknowledged that the level of care and treatment that the Applicant would be able to access in Vietnam may not be an equivalent to the care and treatment that he would be able to access in Australia, but he would nevertheless be able to seek out treatment and medicines to assist in managing his mental health condition. The Tribunal accepts this submission.

34. The Tribunal nevertheless accepts that support from his extended family may be problematic, and considers that Consideration 9.2, the extent of impediments if removed, weighs in favour of revocation of the cancellation of the Applicant’s visa.

    9.3 Impact on victims

35. There is no specific evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims, and the Tribunal therefore makes no finding in relation to this consideration, and gives it neutral weight.

    9.4 Links to the Australian community

36. In considering paragraph 9.4, the Direction requires that decision-makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

    i.       the strength, nature, and duration of ties to Australia; and

    ii.      the impact on Australian business interests.

    9.4.1 Strength, Nature, and Duration of Ties to Australia

37. The Tribunal accepts that the Applicant arrived in Australia on 21 May 1992 and has lived in Australia since he was 16 years old, however he has very little history of positive engagement with the community. His usage of illicit substances appears to have commenced prior to his arrival in Australia, and he made his first sentencing appearance before a court in Australia on 12 November 1993 in the ACT Children’s Court at which time he was dealt with for an offence of ‘armed robbery – using force on a person’ committed on 28 April 1993, less than 12 months after he arrived in Australia. He had further sentencing appearances in 1996, (two) 1998, (three) 2001, 2003, 2007 (four) 2008 (two) 2009 (two) at which time, he managed to avoid prosecution until the episodes which occurred on 12 November 2018. The Applicant gave evidence that he had been on the disability support pension since 2009, however his sister gave evidence that he had been on that pension for a period of about 20 years.

38. The extent of his contribution to the Australian community, was described as “notable contributions to the Australian community, including community work and child assistance at the YMCA and after school care at Macquarie. He also previously worked as a farm hand in Yass”.[110] However, the total period of his positive contribution appears to have been very short, from the period between 1998 and 2000.

    [110] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions at paragraph [20].

39. His siblings and mother all live in Australia, and his mother is involved actively with the local Vietnamese community and the Vietnamese Senior Association in Canberra, both of which organisations provided statements in support of the Applicant.

40. The Tribunal takes into account that the Applicant has now lived in Australia for a period of some 32 years, and the Tribunal considers that the duration of his stay in Australia together with the presence of his immediate family in Australia means that this consideration should be given some weight in favour of revocation of the decision under review. However, the Tribunal does not give great weight to this consideration in light of the fact that the Applicant commenced offending not long after his arrival in Australia, and his positive contribution to the Australian community appears limited.

    9.4.2 Impact on Australian Business Interests

41. There is no evidence before the Tribunal so as to enliven consideration of this sub-paragraph. It is not relevant.

    FINDINGS: OTHER CONSIDERATIONS

42. The application of the Other Considerations in the present matter can be summarised as follows:

    ·international non-refoulement obligations: not relevant;

    ·extent of impediments if removed: weighs in favour of revocation.

    ·impact on victims: neutral; and

    ·links to the Australian community: weighs in favour of revocation.

    CONCLUSION

43. The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.

44. In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal finds as follows:

    ·Primary Consideration 1 weighs heavily in favour of non-revocation;

    ·Primary Consideration 2 is given neutral weight;

    ·Primary Consideration 3 is given neutral weight;

    ·Primary Consideration 4 weighs heavily in favour of non-revocation; and

    ·To the extent that Other Considerations weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined outweigh Primary Considerations 1, and 4.

45. Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

46. Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

    DECISION

47. The decision under review is affirmed.

I certify that the preceding 287 (two hundred and eight-seven) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

...........[SGD]..........................................................

Associate

Dated:   1 July 2021

Date of hearing:	3, 4, 7, 8 and 21 June 2021
Solicitor for the Applicant:	Mr Sean Kikkert Kikkert Law
Solicitor for the Respondent:	Mr Will Sharpe HWL Ebsworth Lawyers

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-documents (G1 to G41 pages 1 to 274)	R	-	19 April 2021
A1	Applicant’s Statement of Facts, Issues and Contentions	A	-	5 May 2021
A2	Statement of Thi Anh Nguyen	A	26 May 2021	27 May 2021
A3	Statement of Thi Luc Hoang	A	26 May 2021	27 May 2021
A4	Clinical Records produced under summons by Canberra Hospital  (pages 1  to 2322)	A	-	28 May 2021
A5	Statutory Declaration of Olivia Wang declared 14 June 2021 attaching transcript of Administrative Appeals Tribunal dated 7 June 2021	A	-	14 June 2021
A6	Statutory Declaration of Olivia Wang declared 16 June 2021 attaching  transcript of Administrative Appeals Tribunal dated 8 June 2021	A	-	16 June 2021
R1	Respondent’s Statement of Facts, Issues and Contentions	R	21 May 2021	21 May 2021
R2	Respondent’s Amended Supplementary Documents (SG1 to SG16 pages 1 to 431).	R	-	28 May 2021
R3	Bundle of ACT Magistrates Court Documents	R	-	1 June 2021