Phan and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2022] AATA 2894
•22 July 2022
Phan and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 2894 (22 July 2022)
Division:GENERAL DIVISION
File Number(s): 2022/3663
Re:Chien Phan
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member Dr N A Manetta
Date:22 July 2022
Date of written reasons: 24 August 2022
Place:Adelaide
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
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Senior Member Dr N A Manetta
MIGRATION – mandatory cancellation of visa – applicant, now 62, convicted in 2016 of very serious offence of heroin sale dating from 2007 – not an isolated transaction – primary considerations – strong anti-social offending – applicant not a mere courier but had operated at the upper end of supply chain – other considerations – lengthy ties to Australian community – old offending followed by crime-free life – offending very serious and decision under review affirmed
Legislation
Acts Interpretation Act 1901 (Cth)
Migration Act 1958 (Cth)
Cases
Esber v The Commonwealth (1991) 174 CLR 430
Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119
Secondary Materials
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
Senior Member Dr N A Manetta
24 August 2022
I delivered oral reasons for my decision in this matter on 22 July 2022. I chose to deliver oral reasons because the applicant, Mr Phan, cannot read English. I delivered simplified oral reasons on that day, given the need to use an interpreter to communicate with Mr Phan in his first language of Vietnamese. Mr Phan has little spoken English.
Written reasons were requested by Mr Phan’s case-worker on his behalf. These written reasons are longer and more detailed than the reasons read out, and interpreted, on 22 July 2022.
This is an application by Mr Chien Phan seeking to have a decision of the respondent’s delegate (dated 28 April 2022) set aside. By this decision the respondent’s delegate affirmed the mandatory cancellation of Mr Phan’s Class BB Subclass 155 Five Year Resident Return Visa that had earlier taken place on 18 February 2020. The visa was cancelled mandatorily under section 501(3A) of the Migration Act, 1958 (“the Act”) because Mr Phan had been convicted of a very serious offence involving heroin. This led to his incarceration for a minimum of five years.
The delegate was asked by Mr Phan to consider revoking the cancellation decision. The delegate was required, under section 501CA(4)(b)(i) and (ii), to consider two questions in this regard; first, whether Mr Phan’s visa was appropriately cancelled (that is, whether he passed the so-called “character test” as defined in section 501), and secondly, if the visa had been appropriately cancelled, whether there was “another reason” for the cancellation decision to be revoked.
The delegate decided that the visa had been appropriately cancelled in the first place. There is no doubt that this decision was correct. Mr Phan had been sentenced to a lengthy term of imprisonment in relation to the heroin offence (that is, one exceeding 12 months). It is clear that he failed the statutorily defined “character test”: see section 501(6) and (7) of the Act.
The delegate concluded, in relation to the second question, that there was not “another reason” for the cancellation decision to be revoked. In reaching this conclusion, the delegate applied Direction 90, issued under section 499 of the Act.
TRIBUNAL’S TASK
My task is to address the same two questions, but I have already indicated that the first question was clearly answered correctly by the delegate. In matters like these, the Tribunal proceeds de novo. It considers the matter afresh and reaches the correct or preferable decision on the evidence before it. This implies that I may affirm the decision under review notwithstanding an error in the reasoning of the delegate if that is the correct or preferable decision on the evidence. Equally, I may set aside the decision under review notwithstanding the absence of any error in the reasons of the delegate if that is the correct or preferable decision on the evidence before me.
Like the delegate, I am obliged to apply any direction issued under section 499 of the Act.
I would note in this regard that there are two such directions that are potentially relevant. The first, so-called “Direction 79”, was in force at the time Mr Phan made representations to the delegate. The second, Direction 90[1], was applied by the delegate and was in force at the time the delegate made his or her decision. One principal difference between the two directions is the particular emphasis Direction 90 gives to family violence, which appears as an explicit primary consideration in its own right. This can be an important difference depending on the facts of a given case.
[1] Direction no 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
10. I was not addressed on the legal question of which of the two directions I am required to apply in my review. I have considered both directions, and I note that my decision would be the same whichever is applied. My reasons will address Direction 90; but I would note the possible effect of the decision and reasoning in Esber v The Commonwealth (1991) 174 CLR 430. I would note in this regard that when Mr Phan had been invited to make submissions under Direction 79 and had in fact done so in a timely way, the delegate’s statutory review power was enlivened, and the delegate had an obligation to consider and apply Direction 79 (which was then in force under section 499). In respect of that obligation to apply Direction 79, Mr Phan had, at least at that point in time, a corresponding right to see it fulfilled. The repeal of Direction 79 might not have affected the delegate’s obligation, or Mr Phan’s corresponding right, in this regard: see section 8 of the Acts Interpretation Act 1901 (Cth). I appreciate that Esber’s case concerned an accrued right to have a matter determined in the Tribunal in accordance with the repealed provisions under consideration in that case; but there is an argument that Mr Phan had an accrued right to have his request for revocation of the cancellation decision considered by the delegate by reference to Direction 79, rather than Direction 90, notwithstanding the repeal of Direction 79. Neither party raised this issue for consideration, and I did not have the benefit of legal argument. I think it right, however, to raise it explicitly, even though my decision would be the same under both directions, because Mr Phan was not represented and was understandably unfamiliar with the relevant legal principles.
STATEMENT OF CONCLUSION
11. I have decided to affirm the decision under review. I set out below the background facts and my reason for this conclusion.
BACKGROUND FACTS
12. Mr Phan gave evidence before me. He said he was born in 1960 in Saigon, Vietnam. He first came to Australia in 1991. He had fled Vietnam with his family in 1988. After living in Malaysia for three years, he arrived in Australia in 1991. I accept this evidence, and I accept that the family lived in a refugee camp in Malaysia before they were eventually resettled as refugees in Australia in 1991. They were granted humanitarian visas.
13. Mr Phan said in his evidence that he has six siblings (three brothers and three sisters)[2]. He is the oldest. I am particularly conscious of the fact that Mr Phan has lived in Australia for some 31 years and is now 62 years of age. That is a most important aspect to his application to the Tribunal. It is raised explicitly by Mr Phan: see Ex R1 at p.5.
[2] Only five are listed, however, in Mr Phan’s application to the delegate: see Ex R1, p 55.
14. Mr Phan gave oral evidence about his relationships. He has had a number of relationships although he was never married. His first relationship was with a Ms Tran in Vietnam. They had three children together. I understand they were all male. Mr Phan gave evidence that these children initially stayed in Vietnam, as did Ms Tran. In 2000, or thereabouts, Mr Phan sponsored the three children to come to Australia, and the children in due course sponsored their mother, Ms Tran, to join them. The children are all adults now and they have their own families and children, Mr Phan said. Mr Phan said he last saw his adult children in 2016. Certainly, Covid-19 restrictions would have affected one-on-one contact from the commencement of the pandemic in 2020 onwards, and I bear in mind Mr Phan was incarcerated in South Australia from 2016 onwards, while his family all live in Victoria.
15. In 1994 or thereabouts , Mr Phan commenced a relationship in Australia with a Ms Nguyen. There are two daughters from that relationship. The relationship with Ms Nguyen ended in about 2000. Ms Nguyen had started a relationship with another man at that point. The first daughter was born in 1995; the second, in 1996. The last one-on-one contact with them was some years ago. The daughters are still single. Mr Phan said he has had regular phone contact with them and is on friendly terms with their mother. She has not come to visit him, however.
16. The third relationship in Australia was with a Ms Pham. A boy was born of that relationship on 17 March 2006. Mr Phan said the relationship with the mother ended after the birth of their child, and he also said that Ms Pham had begun a relationship with another man. The boy is now not quite 16 and a half years old. Mr Phan last saw his son when he was four or five years old, he said. Mr Phan indicated that Ms Pham is apparently opposed to any contact between him and the boy.
17. As for the three Vietnamese children whose emigration Mr Phan sponsored in about 2000, I have already indicated that they are adults and have their own children. Mr Phan has not had any one-on-one contact with his grandchildren in recent times, but there has been phone contact. Mr Phan said he did not want his children and grandchildren to visit him in gaol or the detention centre. Mr Phan does not presently have, he said, the grandchildren’s phone numbers.
18. All in all, the evidence did not suggest to me that Mr Phan played a particularly direct and active role in his children’s or grandchildren’s lives before his incarceration in 2016, and his incarceration in that year prevented meaningful one-on-one contact from that time onwards. There was no written material before me evidencing his role: in particular, no letters of support were adduced to support his application before me. The relationship with the sixteen-year-old son appears to be a relatively distant one[3] but I acknowledge Mr Phan pays child support in respect of this child.
[3] At Ex R1, p 52, Mr Phan suggest he wishes to live with his son on his release, but I do not accept that is at all a realistic possibility.
19. I now turn to Mr Phan’s work history in Australia. Mr Phan began work here as a fruit-picker, at first with his younger brothers and mother. This was seasonal work. In due course, he also went fruit-picking with his three sons from Vietnam (once they had arrived in Australia). In addition, he was involved in garment-manufacturing as a home-based contractor. Overall, he has a long work history in Australia, and, in my opinion, he has been hard-working and self-sufficient.
20. I now turn to consider Mr Phan’s criminal history. His record is set out at Exhibit R1, pp 33ff. The earliest offence dates from 1996 and resulted in a fine. I think it is now so old that it can have no bearing in my consideration of Mr Phan’s review application. Similarly, I do not regard the conviction from 2002 as having any material weight in my deliberations.
21. In 2005, Mr Phan was found guilty of possessing heroin. No conviction was recorded. Mr Phan indicated in his evidence to me that he was lawnmowing at the time and chanced upon an object but did not know what it was. I reject this evidence. Even so, the offending must have been considered very minor as no conviction was recorded and a fine of $200 only was imposed.
22. In the record, there are references to criminal offending dealt with in the Sunshine Magistrates Court on 17 June 2008 and 10 March 2009 respectively. This offending involved family violence directed by Mr Phan against his then girlfriend/partner. On 17 June 2008, Mr Phan was found guilty of two charges of breaching an intervention order and recklessly causing injury. An aggregate concurrent sentence of three months was imposed but the sentence was suspended for an operational period of twelve months. A police record of the alleged offending was in evidence before me (see Ex R2, p 194). I accept the reliability of the police record, especially as some of the behaviour was observed by a passer-by who picked up the victim in his or her car and transported her to the local police station. Mr Phan minimised his culpability by pointing to the suspended sentence he received. I do not accept that submission: the sentence of imprisonment indicated a serious breach of the law.
23. The second offending dates from convictions on 10 March 2009. There are a number of offences recorded at Ex R1, p 34. The events are described in the police report appearing at Ex R2, p 192. It involved a serious episode of violence. Mr Phan had been drinking at a New Year’s celebration. He was being driven away from the celebration by his partner (or former partner), in a car which was also transporting her two-year old son.[4] Mr Phan struck and damaged the side door of the vehicle with a baby stroller. He then smashed the rear windscreen with a pick, showering the sleeping baby with glass. The mother and child were chased around the vehicle until neighbours intervened.
[4] This would suggest it was Ms Pham and their son.
24. The offending caused the earlier three-month suspended sentence to be restored. Two additional concurrent three-month sentences were imposed. All in all, three months’ gaol had to be served.
25. I do note, however, that as at the date of my decision, the events in question, having occurred on 5 January 2009, are more than thirteen years old. That is a long time ago, and I believe I should bear that in mind when I come to apply the Direction.
26. There is a conviction for theft dating from 24 March 2009. Mr Phan denied any offending at all and was, therefore, unwilling to explain the offending. The record shows a suspended sentence of two months’ imprisonment was imposed. That is all I know about the offending. I do not accept Mr Phan’s denials. Again, the offending took place a long time ago.
27. On the same day (24 March 2009), Mr Phan was convicted of cultivating a commercial quantity of cannabis. Mr Phan received a seven-month suspended sentence. Mr Phan claimed before me that he was merely employed to water plants that he did not know were cannabis. He only attended the property once, he said. I reject that evidence. This offending is serious (as the seven-month sentence shows, although it was suspended in the event). It demonstrates a willingness on Mr Phan’s evidence to be involved in the production of an unlawful drug. On the other hand, the offending in question occurred in March 2003, which makes the offending close to twenty years old now. The age of the conviction is a matter I need to bear steadily in mind and I do so.
28. On 29 April 2010, Mr Phan was convicted of threatening to inflict serious injury and of unlawful assault. Mr Phan was unable to recall any details of the events. All I have before me is a Court record showing that an aggregate term of imprisonment of three months was imposed, but the sentence was suspended. It is an old conviction and carries, accordingly, lesser weight for this reason.
29. In the police record, at Exhibit R1, p 34, two pending charges are listed. These have not been dealt with by the criminal courts and I ignore them.
30. Mr Phan was found guilty in 2014 of driving an unregistered motor vehicle. He was convicted and fined $125. It is a minor offence and has no bearing on the decision I must make.
31. I now turn to the most serious offence, that of taking part in the sale, as defined, of heroin in South Australia. Heroin is a so-called “controlled substance” in that jurisdiction. Mr Phan was sentenced to nine years’ gaol with a non-parole period of five years. Mr Phan actively denied his guilt before me. He stressed his innocence. When I pointed out that the sentencing remarks before me indicated there had been telephone intercepts linking him to the crime, Mr Phan blamed the Vietnamese-language interpreter who, he said, misinterpreted what had been said. I reject his evidence in this regard.
32. I have read the sentencing remarks (see Ex R1 at pp 36-37) closely and accept them. The remarks indicate clearly as follows:
· Mr Phan was the subject of telephone intercepts from which the police learned Mr Phan was making arrangements to import heroin from NSW to SA;
· Mr Phan arranged for two people travelling from NSW with heroin to be met at Adelaide airport. These men were then transported to premises at Virginia, SA;
· On 4 May 2007, police searched the Virginia premises and found a total of 304.8 grams of substance which was between 73% and 79% pure heroin;
· The heroin had a very significant commercial value of between $250,000 and $1,000,000;
· Mr Phan was going to sell the heroin in SA;
· The “amount of purity” and the fact that the drugs had just arrived from NSW indicated that Mr Phan was “towards the upper end of the supply chain”;
· Mr Phan’s role was a much more significant one than that of a courier;
· Between the commission of the offence in May 2007 and 23 June 2016, when he was sentenced, Mr Phan had led a crime-free life;
· It would appear that a warrant for Mr Phan’s arrest was issued in 2007, but there was no evidence to suggest Mr Phan had deliberately eluded police;
· Mr Phan was arrested in 2013 and the trial was held in 2016 after various delays;
· The telephone transcripts indicate that this was not the first drug transaction Mr Phan had been involved in at the relevant time and he could not therefore be sentenced on the basis that the offending was an isolated instance only;
· The Court referred to the shock Mr Phan must feel. Having led a crime-free life for some nine years, he was now found guilty of something that had occurred many years earlier;
· A nine-year term of imprisonment was imposed with a five-year non-parole period, backdated to 29 March 2016.
33. An appeal was dismissed by the Supreme Court of South Australia: see Ex R2 at p 171.
DIRECTION 90
34. I now turn to apply Direction 90. Direction 90 specifies a number of considerations that require to be evaluated and weighed. The evaluation and weighing of the considerations are frequently informed by the terms of Direction 90 itself, but consideration must also be given to the facts of the individual case. The considerations to be taken into account, evaluated, and weighed are not exhaustively listed in the Direction as section 9 makes clear. If, having evaluated and weighed all considerations, I decide, on balance, that the visa cancellation should be revoked, I shall be satisfied that there is “another reason” for the cancellation to be revoked under section 501CA(4)(b)(ii); if I decide, on balance, that the visa cancellation should not be revoked, I would not be satisfied that there was another reason for the cancellation to be revoked.
35. I set out the background to the Direction at paras [32]ff of Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119, which I repeat here:
“32. I first make some prefatory remarks about Direction 90. It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).
33. I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.
34. First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.
35. I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai ’s visa.
36. Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight ‘generally’ to primary considerations over other considerations.”
Primary Considerations
36. I turn now to consider the primary considerations. The first such consideration is the protection of the Australian community. I bear in mind what appears in paragraph 8.1(1), without setting it out.
37. I must also have regard to the nature and seriousness of Mr Phan’s conduct to date and the risk to the Australian community should he commit further offences: see paragraph 8.1(2).
38. I address now the nature and seriousness of Mr Phan’s conduct to date. I leave to one side for the moment the most serious conviction involving heroin. I have carefully considered Mr Phan’s criminal history, which is undoubtedly extensive. All of it, however, was at the Magistrates Court level and many offences received suspended sentences. One sentence concerning the possession of heroin was punished without a conviction. The offending is also old now, and the weight to be attached to the various convictions has diminished over time. I am obliged to take into account all Mr Phan’s offending, of course, but I would not regard his earlier offending as particularly important now. I do accept that it does establish clearly that Mr Phan did not respect the law and his legal obligations during these years: he has had many convictions. That said, whilst I am obliged to take into account Mr Phan’s entire record, the significance of Mr Phan’s earlier offending is very substantially diminished by the fact that so much time has passed and some of it was relatively minor.
39. The offending of prime importance to my mind concerns Mr Phan’s participation in the 2007 offence concerning heroin. This offending took place in May of that year, but the matter was only tried in 2016. Mr Phan was found guilty in the District Court. The value of the heroin was estimated to be between $250,000 and $1,000,000. It involved some 300 grams of substance of which an amount between 73% and 79% was pure heroin. Mr Phan was found to have had an intention of selling the drug in South Australia. The Court noted that the amount of purity and the fact of the drugs having just arrived from New South Wales indicated that Mr Phan was towards “the upper end in the supply chain”.[5] His role was not further described by the Court, but the Court did explicitly note that it was more significant than that of a mere courier. The telephone intercept transcripts showed it was not an isolated offence, and Mr Phan was sentenced on that basis. It is not clear, however, how many transactions Mr Phan had engaged in, and so I proceed on the basis that it was a total of two only, which is as favourable an assumption as I can make. Mr Phan was sentenced to nine years in prison with a non-parole period of five years.
[5] Ex R1, p 36.
40. As I have indicated, Mr Phan actively denied the offending before me. He implausibly blamed an interpreter for misconstruing the telephone intercepts that were before the Court. I have already indicated that I reject that evidence. Many applicants to the Tribunal seek to avoid responsibility for their actions because they hope to avoid deportation. I understand that pressure.
41. Where that occurs, however, I cannot assume any remorse in an applicant; that is, he or she will not have demonstrated to the Tribunal any sense of moral guilt for what has occurred. That said, in applying the Direction, I do note that I am not concerned with remorse as such. I am concerned, rather, with the nature and seriousness of the offending and with the risk of its recurrence.
42. I would regard Mr Phan’s offending as very serious. The instances of very serious offending given at paragraph 8.1.1(1)(a) are examples only and do not confine the category. I note again the amount of heroin involved and Mr Phan’s role towards the upper end of the supply chain. Heroin is a pernicious drug, and its misuse poses a very serious threat to the health and well-being of those who are unfortunate enough to be dependent upon it.
43. I am required under subparagraph (c) to have regard to the sentence imposed. A head sentence of nine years is a very long one and marks extremely serious offending. The non-parole period of five years is also long.
44. There has been a frequency in Mr Phan’s offending when his entire criminal offending is taken into account, and there is no doubt that there is a trend of increasing seriousness. The offence involving heroin involved a quite serious escalation of his involvement in the drug-trade (when compared with his earlier involvement in the growing of cannabis and his possession of heroin for personal use). On the other hand, there was a very long gap between this offence and his incarceration when no criminal offending at all is recorded against his name. This is referred to in the sentencing Court’s remarks.
45. I must take into account the risk to the Australian community under paragraph 8.1.2. I bear in mind what appears in subparagraph (1) concerning the Australian community’s tolerance for risk becoming lower as the seriousness of the potential harm increases.
46. Subparagraph (2) requires me to have regard to two matters cumulatively; first, the nature of the harm to individuals or the Australian community should Mr Phan engage in further criminal conduct, and, secondly, the likelihood of his so doing.
47. So far as the first of these two matters is concerned, I note that the supply of heroin is particularly reprehensible given the potential ill-effects of this drug on users, especially over time. Those effects can extend, in an extreme case, to death; for example, because the user, either deliberately or inadvertently, administers a lethal dose or a fatally adulterated one. Heroin misuse is a well-appreciated societal ill. It is a longstanding problem as well. No-one can know, of course, what effect any particular batch of heroin might produce: that will depend in part on the users and also on how it is handled through the supply chain. Nevertheless, it is clear that the potential for serious harm is always there. Accordingly, were Mr Phan to re-involve himself in the supply of heroin, the potential for harm would be very serious indeed.
48. So far as the risk of Mr Phan re-offending is concerned, I would note that this has not been easy to assess in the circumstances. I have no expert opinions before me and Mr Phan denied the offending. He had, however, led a crime-free life for some years between 2007 and 2016 as the sentencing Court observed. I am prepared to accept that the risk of his re-offending is now low because Mr Phan demonstrated in the community some nine years of crime-free living after his participation in the heroin offence. I proceed on this basis, but I note that a “low risk” does not mean “no risk”. I further note that I am required under the Direction to consider this matter “cumulatively”- that is, in conjunction- with the matter referred to in subparagraph (a).
49. I have not considered separately the harm to the community if Mr Phan were to reoffend in the other ways in which he offended many years ago. That is not necessary for me to do given my ultimate conclusion in this case.
50. Family violence is a primary consideration in its own right under the Direction, but I have not accorded it any significant weight in the circumstances of this case. I say this because the instances of family violence go back many years now and they are most unlikely to be repeated. Mr Phan indicated to me that his intention, upon release, would be to find agricultural work, perhaps in the Mildura area or perhaps as far away as the Northern Territory. He no longer has a female partner and I think the chances of further domestic violence are greatly reduced.
51. I wish also to record that I am clear in my own mind that the family violence in which Mr Phan has undoubtedly engaged has not tipped the balance against Mr Phan: my decision in this matter would have been the same if there had been no instances of family violence. For that reason, I need not consider it further. For this reason as well, it does not matter whether Direction 79 or Direction 90 is applied in this regard. It cannot have a material bearing on the outcome.
52. I am required to consider the interests of minor children in Australia. Mr Phan’s son is not quite sixteen and a half years old. Mr Phan said he has not seen his son since the boy was four or five years of age. It is possible that Mr Phan might build a meaningful relationship with his son, and to that extent some weight should be given to revoking the cancellation decision. Like the delegate I think weight should be attached to this consideration because there is always a chance that Mr Phan’s son would wish to have some contact with him although that is not clear on the evidence before me. However, I must bear in mind that as at the date of my decision Mr Phan’s son will turn 18, and cease to be a minor, in just 20 months’ time. I think this matter does count in Mr Phan’s favour but having regard to the evidence before me, I would not accord it significant weight (although I acknowledge the delegate did accord it significant weight).
53. Mr Phan did not refer in his form (see Ex R1, at p 53) to any other minor children whose interests needed to be taken into account by the delegate. I accept, however, that the minor grandchildren (that is, the children of the children of his marriage to Ms Tran) do presumably have an interest in developing a future relationship with Mr Phan if that is feasible. I give that interest some weight, although it is difficult to predict whether that relationship would be likely to develop given Mr Phan’s plans to work as a seasonal fruit picker in regional Victoria or the Northern Territory. Nevertheless, I give it some weight.
54. The expectations of the Australian community constitute a separate consideration. These are expressed in the Direction. Paragraph 8.4(1) makes it clear that where, as is the case here, a non-citizen engages in serious conduct in breach of the expectation of law-abiding behaviour, the Australian community, “as a norm”, expects the Government not to allow the noncitizen to remain. I follow that advice, whilst noting that “a norm” does not mean an inflexible rule.
55. I take the expectations into account as given in the Direction. I note that these count substantially against Mr Phan.
Other considerations
56. I am required to have regard to so-called “other” considerations under section 9 of the Direction. A non-exhaustive list of four such considerations is given.
57. I turn first to the consideration of “extent of impediments if removed”, although it is not the first consideration in sequence. I am particularly concerned about the impact of a decision to affirm the cancellation of the visa. Mr Phan has lived in Australia for a very long time now, namely 31 years. If I add on the three years in the Malaysian refugee camp, there is a total 34 years that Mr Phan has been outside the country. He has lived half his life in Australia now. Nevertheless, Mr Phan speaks fluent Vietnamese, and was a mature adult of some 28 years of age when he left. He has a significant history in Australia of work in agricultural enterprises, which could be applied in Vietnam.
58. I accept that Mr Phan would find it difficult to resettle in Vietnam at this late stage of his life. He is now 62 years old. I take that into account. Without family there, there will be initial, and quite possibly substantial, difficulties for him in settling and finding work. I do note that Mr Phan expressly rejected the suggestion that appears in his application form that he was concerned about a lack of family or financial support in Vietnam (apart from his concerns about the Communist Party of Vietnam): see Ex R1, p 59. He said in his evidence to me that he would be able to survive in Vietnam without family members and financial support; but I do think he has underestimated somewhat the initial difficulties he would most likely well face. Mr Phan did not put to me any particular health issues that would prevent his working in Vietnam or affect his life there. I note that if he were to remain in Australia, his intention would be to seek work in agricultural enterprises. He maintains that he is fit enough to do so.
59. I accept, therefore, that Mr Phan could return to Vietnam and begin work there and support himself. I do accept that he would probably enjoy a markedly lower standard of living there; but under the Direction I am to consider the impediments he might face in establishing himself and maintain basic living standards in the context of what is generally available to other citizens of that country: see paragraph 9.2(1). I do think that he would be able to support himself there. Even so, I do take into account that Mr Phan, as he grows older, would be entitled in Australia to an old-age pension, in just a few years’ time in fact. He will forfeit that right on returning to Vietnam. That represents the loss of a valuable right. Moreover, despite Mr Phan’s suggestion to me that he is fit enough now to work, I bear in mind that he will find it difficult to sustain demanding physical work as he ages further. That will be inevitable. These are matters I ought to take into account and they ought to be given significant weight.
60. Mr Phan raised with me his concerns about returning to Vietnam as his father fled Vietnam as a former soldier serving the old regime before the Communist takeover. I have considered whether this gives rise to international legal obligations not to return Mr Phan to Vietnam (non-refoulement obligations).
61. My conclusion is that these stated concerns should not be given weight in this case because Mr Phan has returned to Vietnam some seven or eight times. On these occasions he did not fear returning, he said, because he was travelling with a document that indicated he had a right to stay in Australia; but he said to me that he would be concerned if he had to return to Vietnam without such a document. The fact that Mr Phan has been able to return to Vietnam seven or eight times without being harassed is a very strong indication in my opinion that he does not have a reasonable basis for fearing for his safety on account of his father’s past military service, and, indeed, that he has not genuinely held those fears in the past. This is not “an appropriate case” in my opinion for me to make assumptions in Mr Phan’s favour concerning persecution on his return to Vietnam: cf paragraph 9.1(6).
62. I do not think the impact-on-victims consideration is relevant in this case.
63. I am to have regard to Mr Phan’s links to the Australian community. Mr Phan has at the present time somewhat distant relationships with his three adult children[6] (and any grandchildren who are no longer minors). The potential for a meaningful relationship exists however, and the mutual interest all have in developing a meaningful relationship counts in Mr Phan’s favour. Mr Phan may also seek to develop closer ties with his brothers and sisters and their children. That is at least a possibility. He appears to be in contact with at least one of his sisters: see Ex R1, p 49. Mr Phan has a real interest in these ties, as do the brothers and sisters, nieces and nephews[7].
[6] And I would also include here the future relationship with Ms Pham’s son when he becomes an adult in 20 months’ time.
[7] I do note, however, that nieces and nephews are not listed in the form seeking review: see Ex R1 at p 55.
64. I believe I ought to take into account very strongly in his favour that Mr Phan’s last offending occurred fifteen years ago, although it was extremely serious offending.
65. I give weight also to the positive contribution Mr Phan has made in the community over many years as a person who has been self-sufficient and worked hard in demanding roles. He has a long work history in Australia.
WEIGHING THE CONSIDERATIONS
66. I have found the decision in this case very difficult. Mr Phan is a 62-year-old resident who has lived the last 31 years (i.e., half his life) here and who has lived a crime-free life since 2007, some fifteen years ago. Deportation to Vietnam will involve him in a considerable amount of hardship. As I have said, these matters do weigh very heavily in his favour. There is also the primary consideration of the interests of minor children in his favour. Nevertheless, his participation in the heroin offence in 2007 was an extremely antisocial crime. Heroin has potentially lethal consequences for those who are unfortunate enough to use it. Mr Phan had been involved in more than one transaction: I have assumed there were two transactions. The heroin had a significant commercial value and he was not a mere courier, but was “towards the upper end in the supply chain”.
67. I bear in mind that other considerations may overcome the primary considerations in an appropriate case, and I have referred to these considerations in these reasons. As I have said I must also give some weight to the interests of Mr Phan’s minor son and grandchildren which constitute a primary consideration.
68. All that said, however, I remain extremely concerned about Mr Phan’s offending, notwithstanding its age, and his level of involvement in the offending as described by the Court (that is, not simply as a courier but towards the upper end of the supply chain in a significant transaction that was not an isolated event). I have assumed in his favour that he now poses a low risk of reoffending, but a “low risk” does not mean “no risk” as I have indicated.
69. In the difficult weighing exercise that I must undertake under the Direction, I have decided that, on balance, there should be no revocation of the cancellation decision despite what I appreciate will be severe consequences for Mr Phan personally and the potential for genuine loss felt by his family members. Accordingly, I do not find that there is “another reason” for the cancellation decision to be revoked under section 501CA(4)(b)(ii) of the Act, and I shall affirm the decision under review.
DECISION
70. The Tribunal affirms the decision under review.
…………[Sgnd]……………
Associate
Dated: 24 August 2022
Date of hearing:
4 and 5 July 2022
Advocate for the Applicant: Self-Represented
Advocate for the Respondent: Claire Campbell, HWL Ebsworth Lawyers
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