MIGRATION – decision not to revoke mandatory cancellation – where applicant is New Zealand citizen – where applicant has substantial criminal record – cultivation of cannabis – theft – primary considerations weigh against revoking cancellation – decision under review affirmed
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancelation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President Bernard McCabe
14 June 2016
Mr Hung Van Do is a citizen of New Zealand who has been living in Australia on and off since 2005. His visa was cancelled on 11 June 2015 pursuant to s 501(3A) of the Migration Act 1958 (Cth) after he was convicted of a serious criminal offence and sentenced to serve two and half years in gaol. He asked the Minister to revoke the cancellation pursuant to s 501CA(4). The Minister’s delegate declined to do so, and the matter has now come before the Tribunal.
I have decided it is not appropriate to exercise the power to revoke the cancellation decision. That means the applicant is unsuccessful. I explain my reasons below.
The background to the application
Mr Do was born in Vietnam but lived in New Zealand for a number of years before moving to Australia in 2005 when he was 17 years of age. There is evidence that Mr Do had an unsettled life in New Zealand: Mr Do’s mother lives in Vietnam and his father left Mr Do behind in New Zealand to reside with friends when the father migrated to this country.[1] Mr Do came to this country in due course and initially resided with his father in Sydney before moving to Melbourne. He worked in a restaurant for a time. Thereafter he obtained work in the building industry, although it seems he was often unemployed. He resided in Canada between March 2006 and April 2007. He also had a number of trips to visit his mother in Vietnam, and one short trip to New Zealand to meet a young woman he contacted on the internet.
[1] Mr Do spoke about his living circumstances in New Zealand when he gave oral evidence. The judge who dealt with Mr Do in 2014 also referred to difficulties Mr Do experienced as a youth: see exhibit one at p 92.
Mr Do said he often experienced financial difficulty. He says that difficulty led to his first brush with the law in 2008 when he was convicted of the offence of driving an unregistered and uninsured motor vehicle. Mr…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Re Do and Minister for Immigration and Border Protection [2016] AATA 390
Case
[2016] AATA 390
Decision Date
CaseChat Overview and Summary
This matter concerned an application by Mr Do, a New Zealand citizen, for the Minister for Immigration and Border Protection to revoke a mandatory cancellation of his visa. The cancellation was based on Mr Do’s substantial criminal record, which included convictions for driving offences, possession of a knife, break and enter, larceny, and, significantly, cultivating a commercial quantity of cannabis and theft. Deputy President Bernard McCabe considered whether to exercise the power to revoke the cancellation decision.
The primary legal issues before the Deputy President were whether the "primary considerations" weighed in favour of revoking the visa cancellation, and whether any "other considerations" were relevant and persuasive. Specifically, the Deputy President had to assess the risk of the applicant re-offending, the best interests of any minor children affected by the decision, and the expectations of the Australian community regarding compliance with the law. The Deputy President also considered the applicant's ties to Australia, his personal circumstances, and any impediments to his removal.
In his reasoning, the Deputy President found that the risk of re-offending, while not high, carried significant consequences, weighing against revocation. The best interests of minor children were not engaged as there were no such children affected by the decision. Regarding community expectations, the Deputy President concluded that while Australia is a nation built on second chances, there is little tolerance for individuals who cultivate drugs on an industrial scale, even if a minor player, as this demonstrates a deliberate defiance of the law. The Deputy President also found that Mr Do had relatively weak ties to Australia, having spent substantial time overseas and having continued to engage in criminal conduct throughout his time in the country. Furthermore, there were no significant impediments to Mr Do resuming his life in New Zealand.
Consequently, the Deputy President determined that the primary considerations weighed against revoking the cancellation decision, and other considerations did not sufficiently favour the applicant. Accordingly, the decision under review was affirmed, meaning Mr Do's visa cancellation was not revoked.
Orders
Orders of the court
The decision under review is affirmed.
Background
Background to the litigation
I have decided it is not appropriate to exercise the power to revoke the cancellation decision. That means the applicant is unsuccessful. I explain my reasons below.The background to the application Mr Do was born in Vietnam but lived in New Zealand for a number of years before moving to Australia in 2005 when he was 17 years of age. There is evidence that Mr Do had an unsettled life in New Zealand: Mr Do’s mother lives in Vietnam and his father left Mr Do behind in New Zealand to reside with friends when the father migrated to this country.[1] Mr Do came to this country in due course and initially resided with his father in Sydney before moving to Melbourne. He worked in a restaurant for a time. Thereafter he obtained work in the building industry, although it seems he was often unemployed. He resided in Canada between March 2006 and April 2007. He also had a number of trips to visit his mother in Vietnam, and one short trip to New Zealand to meet a young woman he contacted on the internet. [1] Mr Do spoke about his living circumstances in New Zealand when he gave oral evidence. The judge who dealt with Mr Do in 2014 also referred to difficulties Mr Do experienced as a youth: see exhibit one at p 92. Mr Do said he often experienced financial difficulty. He says that difficulty led to his first brush with the law in 2008 when he was convicted of the offence of driving an unregistered and uninsured motor vehicle. Mr Do said in his oral evidence that he could not afford to pay for the registration of the vehicle. The applicant’s criminal history was set out in a National Police Certificate (exhibit one at pp75ff). There are convictions in New South Wales for:·Driving an unregistered and uninsured vehicle, September 2008;·Custody of a knife in a public place and possession of a prohibited drug, December 2008; ·Custody of a knife in a public place, February 2009; and·Break and enter a house and steal, larceny and failure to appear in accordance with a bail undertaking, September 2009. There are also convictions in Victoria. The first, in November 2012, arose out of Mr Do’s attendance at a cockfight. He was charged with being found in a common gaming place. But worse was to follow. Mr Do said he owed around $10,000 to unsavoury characters. After returning from a trip to Vietnam, he accepted an offer to act as a ‘crop-sitter’ in a house where a criminal syndicate was growing cannabis plants on an industrial scale. He commenced that role in January 2013 and continued working until the crop was discovered by authorities after a fire at the house in June 2013. Mr Do said he was paid $18,000 for the work, which more than covered his debts. Mr Do was not at the house when police raided but he became aware they knew of his role. He surrendered to police and pleaded to guilty to one charge of cultivating a commercial quantity of cannabis and another charge of theft. (He was accused of stealing the electricity used in the grow house.) The County Court judge sentenced Mr Do to 30 months in prison in respect of the cultivation charge and 12 months in prison in respect of the theft charge. The two sentences were to be served concurrently. Part of the total sentence was suspended.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The community’s tolerance for risk will be lower where the prospect of harm is greater. I accept there is not a high risk of the applicant re-offending, but the consequences of further offending may yet be more serious. In all the circumstances, I am satisfied this primary consideration counts firmly against the applicant. The best interests of minor children in Australia affected by the decision There are no minor children in Australia affected by the decision. This primary consideration does not count for or against the applicant. The expectations of the Australian community The Direction says the Australian community expects non-citizens to obey the law. It goes on to say the nature of the offending behaviour might be such that the community would not expect the decision-maker to revoke the cancellation. A decision-maker is, to some extent, required to guess at the community’s expectations. The Direction does not refer to studies or other evidence which would enable me to formulate a precise view of public attitudes and values. I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature. Modern Australia was founded by convicts and their gaolers, after all: we are a nation built on second chances. The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done. I note the applicant has lived in Australia for most of his adult life, although he has also spent time overseas in Canada and Vietnam. I also acknowledge the sentencing judge’s remarks about the applicant’s good prospects for rehabilitation. The applicant has limited ties to this country: he said in his oral evidence that he does not have regular contact with family members who live here. He has not been integrated into the wider community. I acknowledge the applicant has not been convicted of an offence involving violence or sexual misconduct or one of the other categories of offence that are regarded as being particularly obnoxious. I am also conscious of the state of the debate about the decriminalisation of cannabis. While there is debate within the community about how to deal with marijuana use, I am satisfied there is little patience for individuals who cultivate the drug on an industrial scale in defiance of the law. Mr Do may have been a minor player in the larger enterprise, but he made a deliberate choice to play that role over a lengthy period. He flouted the law because it suited him to do so. He did not act impulsively, or alone. I am satisfied the community would be surprised if he were permitted to stay. In those circumstances, I am satisfied the third primary consideration counts against the applicant.Other considerations
Ratio Decidendi
Legal Principle Established
While there is debate within the community about how to deal with marijuana use, I am satisfied there is little patience for individuals who cultivate the drug on an industrial scale in defiance of the law. Mr Do may have been a minor player in the larger enterprise, but he made a deliberate choice to play that role over a lengthy period. He flouted the law because it suited him to do so. He did not act impulsively, or alone. I am satisfied the community would be surprised if he were permitted to stay. In those circumstances, I am satisfied the third primary consideration counts against the applicant.Other considerations While the primary considerations carry particular weight, the Direction acknowledges (at [14]) other considerations might also be relevant. There are no international non-refoulement obligations at stake in this case. I was not provided with any evidence about the impact of Mr Do’s removal on any Australian business interests. There is no evidence of any impact on victims. Mr Do has relatively weak ties to Australia. I have already observed he does not have regular contact with those members of his family who reside here; while he spoke of a friend with whom he proposed living and working if he were allowed to remain, there is no evidence of other substantial familial, social or community ties to this country. I accept the applicant has lived in Australia since late 2004 or 2005 when he came here at the age of 17, but he has also spent a substantial amount of time overseas during that period. He began offending relatively soon after he arrived and he continued to engage in criminal conduct throughout his stay in this country. I am not satisfied his ties to Australia count strongly in his favour. There are few impediments to Mr Do’s removal from Australia. He said in his oral evidence that he does not have strong ties in New Zealand, but there is no reason to doubt he would be in a position to obtain work and live there. There is no reason to doubt he is eligible to use the social welfare and health care systems in that country. He is in good health and he speaks relatively good English. There are no substantial barriers that would prevent him resuming his life in New Zealand.Conclusion I have already indicated the first and third primary considerations count against the applicant. The second primary consideration does not count either way. The other considerations either do not count, or count only weakly in the applicant’s favour. In those circumstances, it would not be appropriate to revoke the cancellation decision. The decision under review must therefore be affirmed.