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

NWWJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1631 (4 June 2020)
Division:GENERAL DIVISION
File Number(s): 2020/1693
Re:NWWJ
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:4 June 2020
Place:Sydney

The reviewable decision of the delegate is affirmed
........................................................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – Mandatory visa cancellation – Partner (Residence)(Class BS) Subclass 801 visa (the visa) – domestic violence conviction of a serious and violent nature – failure to pass character test – Ministerial Direction No. 79 applied – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – strength, nature and duration of ties – extent of impediments if removed – whether non-refoulement obligations are owed – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
FYBR v Minister for Home Affairs [2019] FCAFC 185
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
Omar v Minister for Home Affairs [2019] FCA 279
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA
REASONS FOR DECISION
Sydney
4 June 2020
FACTS

The applicant, who was given a pseudonym of NWWJ, is 45-year-old Vietnam citizen. The applicant came to Australia at the age of 34 and was granted permanent residence in 2015.
The offence the applicant was convicted of and which lead to the mandatory cancellation of his visa under section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) was committed in 2017, some seven years after he arrived in Australia and approximately two years after he was granted permanent residence.
The conviction was the result of an incident where the applicant was found to have poured boiling hot water from a pot on an active stove over his ex-wife, who suffered significant injury as a result. The applicant was convicted of the offence of assault occasioning actual bodily harm on 26 November 2018 and was sentenced to 20 months imprisonment with a non-parole period of 15 months.
The applicant was found guilty in the Local Court and appealed to the District Court, which affirmed the conviction.
The applicant spent some nine months in custody prior to being convicted, because he breached his Apprehended Violence Order (‘AVO’) and Bail Conditions after his arrest and pending trial. This was taken into account as time served in his sentence.
The applicant has continued to maintain his innocence and alleges that his conviction was procured as a result of unlawful acts on the part of the NSW Police.
Despite the applicant’s claims, the sentencing Judge found that the applicant was guilty of pouring boiling water over his ex-wife while she was in a prone position, that her injuries were very serious and she suffered unbearable pain and that her injuries were entirely consistent with the applicant pouring boiling water over her back. The sentencing Judge found that there was no other way the injury could have occurred.
The Judge noted that the applicant showed no remorse or contrition for his actions.
An appeal to the District Court was dismissed on 25 May 2019. The applicant continued to maintain his innocence with unsuccessful attempts to appeal to the Supreme Court of NSW and the High Court.
In the hearing before this Tribunal, the applicant continued to maintain his innocence in relation to his conviction.
The reviewable decision before the Tribunal is a decision made by a delegate of the Minister (‘the delegate’) dated 12 March 2020 and notified to the applicant on 13 March 2020, not to revoke an earlier decision to cancel the applicant’s Partner (Residence)(Class BS) Subclass 801 visa (the visa).
THE LAW
Given that the applicant does not meet the character test, it is now necessary to consider the evidence in accordance with Direction 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’) in deciding whether or not to exercise the discretion under section 501(1) of the Act.
There are also a number of general guidelines in relation to the exercise of discretion set out in the Preamble to the Direction. The following principles contained in paragraph 6.3 are of particular relevance:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa
….
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled or their visa application refused.
The Direction sets out primary and other considerations that must be taken into account, where relevant, when deciding whether to refuse to grant a visa. Primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations. Those primary considerations pursuant to Part C of the Direction are as follows:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian Community.
The Direction also sets out other considerations that must be taken into account, which include (but are not limited to):
(d)international non-refoulement obligations;
(e)strength, nature and duration of ties to Australia;
(f)impact on Australian business interests;
(g)impact on victims; and
(h)extent of impediments to the applicant if removed from Australia.
ISSUES
As the applicant has been sentenced to a term of imprisonment of more than 12 months, he does not meet the character test set out in section 501(3A) of the Act.
Accordingly, the issue before the Tribunal is whether, having regard to Ministerial Direction 79 (‘the Direction’), there is any other reason why the mandatory cancellation of the applicant’s visa should be revoked.
THE EVIDENCE
The applicant spent a great deal of the hearing trying to explore the circumstances leading to his conviction and continuing to maintain his innocence in relation to this.
The applicant said he had told the Federal Court at his hearing that the NSW Police had “set [him] up” and also said that the Department had been “deceitful” in cancelling his visa.
Mr Gary Davis, who appeared as the applicant’s McKenzie friend at the hearing, also maintained that the applicant was innocent. He said that the applicant “is a peaceful man” and drew attention to the mental health of the applicant’s ex-wife, but without producing evidence of any kind.
Both the applicant and Mr Davis emphasised that the applicant was charged with only one offence, that the applicant was innocent of this offence and that that he had not re-offended.
The applicant, supported by Mr Davis, said that he did not have any mental health issues and that he had always been “in his right mind”.
The applicant said he had a strong relationship with his now adult daughter but had had little contact with her since his conviction due to the AVO conditions which restrict their contact. He alleged that his daughter believed that he did not perpetrate the domestic violence offence against his ex-wife. However, he said that as his daughter was currently residing with his ex-wife, she would not speak against her.
The applicant gave evidence as to his working with refugees from Vietnam and said that he appreciated Australia taking in so many Vietnamese refugees. He said he appreciated Australian values of fairness, democracy and the protection of women.
The applicant also said that he worked with various organisations in support of democracy in Vietnam and that this had brought him to the attention of the Vietnamese government. The applicant said he had lodged a protection visa application in relation to the fear of harm he might face if returned to Vietnam, but that this had been refused on 11 May 2020.
The applicant said he had always worked and never received welfare whilst in Australia.
PRIMARY CONSIDERATIONS
The first primary consideration covers two issues. Firstly, the nature and seriousness of the applicant’s conduct, and secondly the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the relevant conduct
A review of the material before the Tribunal indicates that the applicant has had continuing interactions with the police in relation to his ex-wife.
Queensland police material indicates that a temporary protection order in the context of domestic violence was made against the applicant in 2014 and that there were subsequent Court proceedings in relation to breach of that order, although no conviction was recorded. It is noted that this occurred prior to him being granted permanent residency in 2015.
The various police records in Queensland and in New South Wales, which were part of the evidence given to the Tribunal, included noted incidents where the applicant made complaints against his ex-wife. For example, on 29 March 2017, the applicant called police and complained that his wife at the time had hit him across the face and smashed her phone. The police were unable to find any evidence supporting the claim and the phone was not in bad form, and it was noted by the police that the ex-wife said her husband was mentally ill, that the applicant could not remember any details of what had allegedly happened and that the applicant had ‘heard voices’.
A further incident occurred on the 25 September 2017 where the police noted that the couple were in a relationship breakdown. Again, on 6 October 2017, the applicant claimed that his wife at the time had threatened to make false allegations against him to the effect that he had threatened to kill her. The wife said again that her husband had mental health issues and the police also spoke to a doctor who confirmed that the applicant had a history of depression and psychotic fever, which involved delusions. The doctor said the problems were caused by the applicant not taking his medication and by the stress of family court proceedings.
The next incident which occurred was that which lead to the applicant’s conviction on 10 November 2017. Again, the police record the applicant’s ex-wife stating that she was fearful when her husband suffered mental health episodes.
The applicant was subsequently charged on 22 November 2017 with a breach of the AVO put in place following the domestic violence incident, as he was alleged to have contacted his ex-wife on Facetime in breach of the AVO conditions. There is also reference to the applicant’s mental health issues.
Taken as a whole, the police records indicate that the applicant was demonstrating increasingly erratic behaviour prior to the incident of 10 November 2017 and concerningly has potential underlying mental health issues that have remain unaddressed and are not acknowledged by the applicant.
The offence for which the applicant was convicted is clearly very serious. The Direction states that violent and sexual offences against women are to be treated as very serious. The injuries sustained by the applicant’s ex-wife were extensive, as noted by the sentencing judge, and caused his ex-wife a significant amount of pain.
All domestic violence offences are unacceptable, an escalating level of domestic violence over time is of even greater concern. Serious physical injury in a domestic violence setting is particularly egregious. Domestic violence is a source of very significant individual and societal harm.
The applicant continues to maintain his innocence in relation to the offence for which he was convicted. However, the sentencing judge noted that there was no other way in which the injury could have been sustained and the wife’s injuries were entirely consistent with a person pouring boiling water over her back.
There is nothing in the evidence to support the applicant’s claims that the ex-wife was or was intending to make false claims against him. To the contrary, she appeared to be trying to explain or minimise his behaviour in terms of his mental health issues and failure to take his medication. The applicant’s failure to accept blame and to apportion all the blame on his ex-wife adds further weight to the seriousness of his offences.
Risk to the Australian community
The Tribunal is required to consider the risk to the Australian community should the non-citizen commit other offences or engage in other serious conduct.
In the current case, the applicant has been found guilty of only one offence. However, that was a very serious domestic violence offence, involving serious and potentially permanent injury to the applicant’s ex-wife.
Although there was no medical evidence given to the Tribunal, it does appear from the police records tendered that the applicant has had underlying mental health issues, which may have played a part in the offence for which he was convicted. However, before the Tribunal, both the applicant and Mr Davis denied that the applicant had ever had any mental illness. This is at odds with the police records referred to above.
A lot of time at the hearing was taken up by the applicant protesting his innocence and claiming that the police had framed him in relation to the incident for which he was convicted. This was despite the applicant being continually reminded that it was not open to the Tribunal to go behind his conviction to determine the applicant’s guilt or innocence, and that this was established by the Federal Court in the case of HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202. At [78] the Court found as follows:
Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
Mr Davis, who I found quite sincere and who clearly wanted to assist the applicant, also could not resist telling the Tribunal that the applicant was an “innocent man”. Furthermore, character references provided to support the applicant also maintained his innocence or did not refer to his offending.
This is completely contrary to the findings of the sentencing Judge, which I have referred to above and which I accept.
It appears that the applicant has little or no insight into the nature of his offence and does not accept any responsibility at all, including accepting that he may have had mental health issues which may be ongoing and that he should take medication to address this.
Accordingly, it is impossible to conclude that there is no risk of the applicant reoffending. I find that the risk is a serious one, given the history of domestic violence causing police intervention in New South Wales and Queensland, failure to accept the verdict of the NSW Courts and an unwillingness to accept that he may have underlying mental health issues. In this regard, I note further that the applicant’s behaviour before the Tribunal was somewhat erratic and paranoid, especially in relation to verification of the credentials of the accredited interpreter assigned for the hearing.
I find that this consideration weighs significantly in favour of non-revocation.
Best interests of minor children in Australia
At the hearing the applicant gave evidence as to his relationship with his now adult daughter. There were a number of photographs and videos of the applicant with his daughter.
The applicant’s daughter did not give evidence at the hearing, even though the applicant said that his daughter believed him to be innocent and that what had occurred to him resulted from something “mum said”. He said that the daughter would not give evidence at the hearing because she was living with her mother who was the victim in the incident for which the applicant was convicted.
The applicant’s daughter is no longer a minor, and it does not appear that the applicant has any other minor children. Therefore, this relationship is not weighed in the primary consideration relating to the best interests of minor children in Australia. It is, however, relevant when assessing the consideration relating to the effect of revocation on other family members which I will outline below.
Accordingly, I give no weight to this primary consideration.
Expectations of the Australian community
As set out by the full court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, the Tribunal is guided by the direction and the Government’s views as to the expectations of the Australian community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to the applicant’s circumstances or evidence about those expectations.[1]
[1] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] (per Charlesworth J) and [92]-[93],[100][104] per (Stewart J).
This position was further enunciated by Justice Mortimer in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] and [77] where her Honour stated as follows:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] ... It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.

It is clear that the Australian community has no tolerance for domestic violence and the conviction the applicant received is very serious. In addition, there is an expectation that non-citizens obey Australian law and that evidence to the contrary must weigh against the revocation of the decision of the Delegate.
I therefore find this consideration weighs heavily against revocation.
OTHER CONSIDERATIONS
Strength, nature and duration of ties to the Australian community
The applicant has been in Australia for approximately 11 years. During this period, the applicant has spent the last two of those years either in criminal custody or in immigration detention.
Given that the applicant arrived in Australia when he was approximately 34 years old, that he subsequently returned to Vietnam and lived there for approximately a year and that he is now 45 years old, most of his life has been spent in Vietnam, including his childhood and all of his early adulthood.
There has been no statement of support from either the applicant’s daughter nor her mother, his ex-wife. The applicant said that he wants to pursue a relationship with his daughter and that he has been unable to do so. There was no evidence before the Tribunal that the daughter wants to establish such a relationship. I accept that the applicant has previously had a relationship with his daughter and they would not be able to re-start face-to-face contact in Australia if his visa is cancelled. I also note that the applicant has had very little contact with his daughter over at least the last two years, and that there is currently an AVO in place which prevents him from contacting or seeing her. Other than his daughter, his immediate family members all live in Vietnam.
The applicant gave evidence that he has worked whilst residing in Australia, and he has in the past provided a number of references to the Delegate, mainly individuals he has met through church congregations. However, none of those people gave evidence before the Tribunal or were in attendance to be cross-examined on the extent of their continuing ties to the applicant.
The applicant appears to have a close relationship with Mr Davis, who says he has known the applicant since approximately 2012 and at one stage shared a house with him. The friendship appears to have been established through a church community, originally in Perth.
Mr Davis, who had previously given a formal statement but did not give evidence and was not subject to cross-examination at the hearing, made statements in support of the applicant. Mr Davis strongly supported the applicant’s claims that he was not guilty of the offence for which he was convicted. But Mr Davis also previously stated that he did not have any first-hand knowledge of the events that occurred in 2017.
I also note statements from Ms Nguyen and her daughter. Ms Nguyen claimed that the applicant’s ex-wife had deliberately burnt herself. However, neither Ms Nguyen nor her daughter appeared at the hearing and little weight can be placed on their statements.
There were a number of statements from other individuals included in the material submitted to the Tribunal, but again none of those individuals appeared at the hearing or were subject to cross-examination, and little weight can be placed on their statements.
I accept that individuals prepared statements in support of the applicant and may be affected if his visa cancellation is not revoked. However, overall and in light of the evidence presented at the hearing, it is difficult to conclude that the applicant has strong ties to Australia or any significant support.
The applicant said that he intended to work if he were released from detention but did not appear to have any employment certainty.
On balance, although the applicant has no doubt formed some ties in Australia during the period he has lived here, they appear to be limited and I give them limited weight in favour of revocation.
Extent of impediments if removed
The applicant gave evidence that he spoke Vietnamese fluently, he is clearly familiar with Vietnam and had family connections in Vietnam. Whilst the applicant is 45-years-old, he arrived in Australia as an adult, having spent the majority of his life in Vietnam. He has also returned to Vietnam for approximately one year after he came to Australia. It is therefore unlikely that he would face any significant language or cultural barriers in Vietnam.
There is no reason to suppose that the applicant would not have family support if he were to return to Vietnam, nor that he would be unable to obtain employment.
I note that the applicant has not raised any medical issues that could be adversely affected if he had to return to Vietnam. However, at the hearing and in considering the New South Wales and Queensland police reports, it is clear the applicant has potential underlying mental health issues. There is no evidence before the Tribunal as to whether this will pose an issue for the applicant, but it might be harder for the applicant to access the same level of health care in Vietnam. I note that it does not appear that the applicant is currently addressing any potential mental health issues in Australia or taking the appropriate medication.
At the hearing the applicant made claims that, as a result of his working with Vietnamese refugee groups and advocating on behalf of those calling for democracy in Vietnam, he would be put in danger if he were to return to Vietnam. He also said that his religion would cause problems if he were to return.
At best, these claims are vague and lack specificity.
The applicant said that there were people he knew that had been visited by the Vietnamese authorities because of his activities, but there were no details provided.
The claim in relation to religious and political persecution appears contrary to what is contained in the Department of Foreign Affairs and Trade Country Information on Vietnam from 2019. As outlined in more detail in considering non-refoulement obligations, the applicant’s claims are so vague and lacking in detail that the Tribunal cannot make any finding that is properly based.
Overall, I accept that there may be some impediments to the applicant’s removal which weigh moderately in favour of revocation.
International non-refoulement obligations
This consideration requires the Tribunal to consider whether Australia’s international treaty obligations may be engaged in a particular case. In particular, the Tribunal should consider whether the Applicant will suffer significant harm if the mandatory cancellation of his visa is not revoked, and he is returned to Vietnam.
At the hearing and in his protection visa application, the applicant claimed that he was a human rights activist who criticised the Vietnamese government and is therefore at a higher risk of persecution if he were to return. He also claimed that his Christian belief would mean he would be targeted. In his protection visa application, the applicant claimed that relatives and friends in Vietnam had been visited by the police because of his activities in Australia but provided no evidence of any kind to support these claims.
The Tribunal is required to consider the applicant’s claim to fear harm if he were returned to Vietnam (Omar v Minister for Immigration and Border Protection (2017) 248 FCR 456).
Other than vague and unsubstantiated claims, the applicant did not raise claims in relation to possible harm. Unlike the situation in Omar v Minister for Home Affairs [2019] FCA 279, the applicant did not present to the Tribunal “a serious and substantive basis in fact and law” for the vague and generalised representations he made, and did not present any detailed submissions to the Tribunal.
I note that in this case the applicant applied for a protection visa, which has been refused by the Department and is now the subject of a review application to the Tribunal. This is not conclusive as to whether non-refoulement obligations are owed to the applicant, which are wider in nature, but it does give some weight to the other evidence or lack of evidence provided to the Tribunal. As outlined in the protection visa decision by a Delegate, it was found that the applicant’s fear of harm is not well founded, and that country information on Vietnam was not supportive of the applicant facing a real chance of harm in Vietnam for the reasons of his political opinion and religious belief. In reaching these conclusions, the Delegate found that Australia does not owe protection obligations or complementary protection in considering whether to grant the applicant a protection visa.
I note that the applicant has also voluntarily returned to Vietnam for almost a year since settling in Australia.
In all the circumstances of this cases where there is little other than vague assertions and no specific detail, and taking into account the country information, it is impossible to conclude that the applicant’s claims to fear harm can be given weight and that Australia’s non-refoulement obligations under international law are engaged.
The Tribunal finds that this consideration weighs slightly in favour of revoking the mandatory cancellation of the visa, but that weight is not substantial both because of the applicant’s voluntary return to Vietnam since coming to Australia, the country information provided and because there was insufficient material to support the elements of such a claim because the Applicant did not present specific fears of persecution or other harm if he were to be returned to Vietnam.
DECISION
I note that the applicant was reminded by both the Tribunal and the respondent of the need to ensure that he filed all documents, witness statements and other material prior to the hearing date in accordance with the normal rules of the Tribunal, including complying with the two day rule. No witnesses were called and most of the material filed related to the applicant’s claims as to his conviction in New South Wales and why it was a miscarriage of justice.
At the hearing the applicant was constantly told that the Tribunal had no power to look behind the criminal conviction to determine his innocence. Nevertheless, a great deal of time was spent on this issue.
At the conclusion of all of the material being presented on the first day, including closing submissions, the applicant raised the possibility of coming back and resuming the hearing for a second day, but could not advance any reason why it was necessary other than that the matter was originally listed for two days. In view of the constant repetition during the hearing, the regular urgings and reminders to the applicant to prepare for the hearing and the fact that the evidence (including cross-examination and re-examination) had concluded, the Tribunal declined what was effectively a re-opening of the matter.
On the evidence presented, the Tribunal finds the correct and preferable decision is to affirm the decision of the delegate to revoke the applicant’s visa.

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President.

..................................[sgd]......................................
Associate
Dated: 4 June 2020

Date of hearing: 18 May 2020

Applicant’s advocate:

Respondent’s representative:

Mr G. Davis

Ms D. Watson

[2020] AATA 1631

4 June 2020

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