RRCX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 379
•8 February 2022
RRCX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 379 (8 February 2022)
Division:GENERAL DIVISION
File Number(s): 2021/8835
Re:RRCX
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:8 February 2022
Date of written reasons: 4 March 2022
Place:Sydney
The Reviewable Decision dated 19 October 2021 to refuse to revoke the Mandatory Visa Cancellation Decision dated 31 January 2020 is set aside and in substitution the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa is revoked.
....................................[SGD]....................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – mandatory cancellation – failure to pass the character test – Direction 90 – primary considerations – protection of Australian community – best interests of minor children – expectations of Australian community – other considerations – impediments if removed from Australia – links to Australian community – decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Migration Act 1958 (Cth) ss 501, 501CA
CASES
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FYBR and Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
WRITTEN REASONS FOR DECISION
Senior Member Linda Kirk
4 March 2022
RRCX (‘the Applicant’) is a 35-year-old citizen of Vietnam.[1] He first arrived in Australia in 1997 as the holder of a Child (Subclass 101) visa.[2] Prior to its cancellation, the Applicant held a Class BB Subclass 155 Five Year Resident Return visa (‘the visa’) granted to him on 20 July 2015.[3]
[1] Exhibit G, G16,88.
[2] Exhibit G, G13,73-74.
[3] Exhibit G, G14,75.
On 31 January 2007, the then Department of Immigration and Citizenship (DIAC) sent the Applicant a Notice of Intention to Consider Cancellation of his visa (NOICC) on the basis of a conviction recorded in 2006.[4] On 25 June 2007, following receipt of a submission from the Applicant, DIAC sent him a formal counselling letter advising that ‘No consideration is currently being given to cancelling your Child (Migrant) (Class AH), Subclass 101 visa under section 501 of the [Migration] Act’. The letter warned the applicant that ‘any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in the consideration of the cancellation of your visa or refusal of your application under section 501 of the Act’.[5] The Applicant acknowledged receipt of the formal counselling letter on 30 June 2007.[6]
[4] Exhibit R1, TB12,205.
[5] Exhibit G, G12,66-67.
[6] Exhibit G, G12,72; see also Applicant’s statement dated 23 December 2021, [24].
In July 2019, the Applicant was convicted and sentenced in the District Court for the following offences:
(a)one count of Cultivate prohibited plant >= large commercial qty cannabis – five years’ imprisonment (three years’ non-parole);
(b)one count of Supply cannabis > indictable & < commercial quantity – three years’ imprisonment (15 months’ non-parole);
(c)one count of Police pursuit – not stop – drive dangerously – 1st off – 12 months’ imprisonment (12 months’ driver disqualification); and
(d)one count of Drive motor vehicle during disqualification period – 1st off – three months’ imprisonment (six months’ driver disqualification).
On 31 January 2020, the Applicant’s visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied the Applicant did not pass the character test in subsection 501(6) of the Act as he was considered to have, pursuant to subsection 501(7)(c), a ‘substantial criminal record’.[7] The letter invited the Applicant to make representations to the Minister about revoking the decision to cancel the visa within 28 days of receipt of the letter.[8] At the time the Applicant was serving a sentence of full-time imprisonment at the St Heliers Correctional Centre in New South Wales, for an offence against a law in Australia.[9]
[7] Exhibit G, G14,75.
[8] Exhibit G, G, 76-78.
[9] Exhibit G, G4,15.
On 18 February 2020, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[10]
[10] Exhibit G, G4,15, G15,83.
On 4 July 2021, the Applicant became eligible for, and was granted, parole.[11] However, as a result of the cancellation of his visa, the Applicant was transferred to immigration detention.
[11] Exhibit G, G4,23.
On 19 October 2021, a delegate of the Respondent decided, under subsection 501CA(4), not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[12] The Applicant was notified of that decision on 16 November 2021.[13]
[12] Exhibit G, G3,14.
[13] Exhibit G, G5,31.
On 21 November 2021, the Applicant applied to the Tribunal for review of the Reviewable Decision under subsection 500(1)(ba) of the Act.[14]
[14] Exhibit G, G1, 1.
The matter was heard by the Tribunal on 27 and 28 January 2022. The Applicant attended the hearing by videoconference from Villawood Immigration Detention Centre and was represented by counsel. The following persons gave oral evidence and were cross-examined at the hearing:
- the Applicant;
- Ms TTN
- Ms TBLT
The material before the Tribunal consists of:
- Section 501G-Documents (G1-G36, pages 1-203) filed 2 December 2021 – Exhibit G
- Respondent’s Tender Bundle (TB1-TB15, pages 1-289) filed 18 January 2022 – Exhibit R1
- Applicant’s Bundle of Material filed 23 December 2021 – Exhibit A1
- Statement of Ms TTN filed 12 January 2022 – Exhibit A2
- Statement of Ms TBLT filed 12 January 2022 – Exhibit A3
The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(4) 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.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 90
The Minister is empowered by subsection 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[15]
[15] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[16]
[16] Direction [2-3].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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 measureable 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 noncitizens 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 noncitizens 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 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.
Paragraph 6 of the Direction provides that, informed by the principles in paragraph 5.2, a
decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.Paragraph 8 of the Direction identifies the following as primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)Whether the conduct engaged in constituted family violence;
c)The best interests of minor children in Australia; and
d)Expectations of the Australian community.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’ Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[17] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another:[18] ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501’.
[17] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
[18] (2016) 241 FCR 461 at [57].
ISSUES FOR DETERMINATION
Before the power in sub-section 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by sub-section 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[19] the Full Court of the Federal Court of Australia made the following observations in relation to sub-section 501CA(4):
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...[20]
[19] [2018] FCAFC 151.
[20] 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).
The issues for determination are:
1)whether the Applicant passes the ‘character test’; and
2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Childhood in Vietnam
The Applicant was born in 1986 in Ho Chi Minh City, Vietnam. In 1988, when the Applicant was two years old, his father left Vietnam by boat and travelled to Australia.[21] The Applicant was left in the care of his mother. When the Applicant was four years old his mother died of lung cancer and he was then raised by his grandmother.[22]
[21] Exhibit R1, G20,112 (letter from KTT).
[22] Exhibit R1, G17,102 (letter from applicant).
Migration to Australia
The Applicant’s father, having obtained Australian citizenship as a refugee, sponsored the Applicant’s migration to Australia. The Applicant arrived in Australia in 1997 when he was aged 11 years.[23] He lived with his father and attended school. He struggled with English and found it difficult to learn. He dropped out of high school during Year 9 because he was struggling with the school work.[24]
[23] Exhibit R1, G13,74 (movement history); Transcript of proceedings, 27 January 2022, 11.
[24] Exhibit A1, Statement of Applicant, [20]; Transcript of proceedings, 27 January 2022, 65.
Employment
After leaving school the Applicant lacked any significant employment skills, having only worked as a builder’s labourer for six months at that stage. He worked in numerous jobs, including employment as a waiter in a Vietnamese restaurant.[25] He remained in this job for about six months and worked in hospitality for two to three years.[26]
[25] Transcript of proceedings, 27 January 2022, 12.
[26] Exhibit A1, Watson-Munro report, 7.
Between 2009 to 2016 the Applicant worked as a builder building greenhouses for a farm.[27] After three years he was employed as a labourer working with marble stone and building bench tops. He then worked with a friend as a handyman builder building granny flats, fixing houses, installing doors and painting. He was later employed as a labourer at a powder coating factory.[28]
[27] Transcript of proceedings, 27 January 2022, 20.
[28] Transcript, 10-21; A1, Statement of Applicant, [27]; G16,98.
In 2016 he established his own handyman business.[29] In order to establish himself, the Applicant borrowed money from an associate to purchase tools and to hire an employee. Facing escalating financial pressure to repay the loan, in addition to supporting himself and his family, the Applicant claims he was pressured by the lender into criminal activity with a view to resolving his debt.[30]
[29] Exhibit A1, Statement of Applicant, [30].
[30] Exhibit A1, Watson-Munro report, 3; Transcript of proceedings, 27 January 2022, 21.
Criminal history in Australia
The Applicant’s National Police Check dated 8 January 2020 records the Applicant’s convictions in Australia.[31]
[31] Exhibit R1, G6,32-35.
The following table sets out the details of the Applicant’s convictions and sentences:
#
Date of offence
Ref
Offence
Date of conviction
Age
Court
Penalty
1
Mar 2002
R145
Custody of folding keyring knives
June 2002
15
Children’s Court
$50
2
Mar 2002
R145
In company with PN, ST after robbery
June 2002
15
18 months probation under s 33(1)(E)
3
May 2002
R137
Larceny of black Tarocash jacket
Sep 2002
16
Children’s Court
Dismissed under s 33(1)(A) with caution
4
May 2004
R126
Unlicensed driving
Sep 2004
18
Children’s Court
$400
5
R123
Possess stolen goods ($50 currency)
6
R124
Supply heroin on an ongoing basis
Control order (juvenile detention) under s 33(1)(G) for 9 months, suspended under s 33(1B) with conditions for 12 months
6A
Appeal from sentences imposed in Sep 2004
April 2005
18
District Court
Sentence confirmed (recorded as imprisonment for 12 months with a 9 month non-parole period, suspended under s 33(1B) with conditions for 12 months)
7
May 2005
R112
Unlicensed driving
Sep 2005
19
Local Court
$200 plus costs and disqualification for 3 years
8
R112
False driver’s licence
$200 plus costs
9
R112
False name or address
$200 plus costs
10
June 2005
R116
Unlicensed driving
$400 plus costs and disqualification for 3 years
11
Aug 2005
G9
Supply heroin > indictable quantity
June 2006
19
District Court
2 years imprisonment with 15 month non-parole period
12
July 2008
R79
Larceny < $2k
July 2008
21
Local Court
6 months imprisonment (stayed pending appeal)
13
Larceny $2k – $5k
14
Shoplifting $2k – $5k
4 months imprisonment (stayed pending appeal)
14A
R83
Appeal from sentences imposed in Jul 2008
Dec 2008
22
District Court
7 months imprisonment suspended on a s 12 bond for 7 months
15
June 2008
R100
False name or address
Sep 2008
22
Local Court
$500 + costs
16
False driver’s licence
$500 + costs
17
Special range PCA
$300 plus costs and disqualification for 6 months (concurrent)
18
Driving while disqualified
$1,000 plus costs and disqualification for 2 years
19
Mar 2008
R54
Shoplifting – SEDUCE clothing store (all jackets returned)
June 2015
28
Local Court
$500 plus s 9 bond for 12 months
20
May 2015
R44
Special range PCA
s 10 bond for 12 months
21
July 2017
R65
Possess ecstasy
Dec 2017
31
Local Court
s 9 bond for 2 years
22
Drive with illicit substance in blood
$300 plus disqualification for 3 years
23
Possess prescribed restricted substance (oxazepam)
s 9 bond for 2 years
24
Reckless driving
$800 plus disqualification for 12 months (concurrent)
25
Apr 2018
G7
Cultivate large commercial quantity of cannabis
July 2019
32
District Court
5 years imprisonment with non-parole period of 3 years
26
Supply indictable quantity of cannabis
3 years imprisonment with non-parole period of 15 months (concurrent)
27
Use electricity without authority
Taken into account on Form 1
28
Drive dangerously after police pursuit
12 months imprisonment and disqualification for 12 months
21A
Call up of ecstasy offence sentenced in Dec 2017
1 month imprisonment (concurrent)
23A
Call up of oxazepam offence sentenced in Dec 2017
1 month imprisonment (concurrent)
Drug offences
In September 2004 the Applicant was convicted in the Children’s Court of New South Wales of Supply prohibited drugs on an ongoing basis-SI.[32] The drug involved was heroin. He was placed on a nine-month control order, suspended for 12 months upon entering a good behaviour bond with conditions. The Applicant told the Tribunal that he was young when he committed this offence and he had only been dealing for a couple of weeks when he was arrested.[33] His role was to be the ‘little helper’ for his co-offender.[34]
[32] Exhibit G, G6,35; Transcript of proceedings, 27 January 2022 ,54.
[33] Transcript of proceedings, 27 January 2022, 54-55.
[34] Transcript of proceedings, 27 January 2022, 14.
In February 2005 the matter came before the NSW District Court on appeal and a warrant was issued. In April 2005 the Applicant was re-sentenced to 12 months imprisonment, but the sentence was suspended.[35]
[35]Exhibit G, G6, 34.
In his statement dated 23 December 2021, the Applicant stated in relation to this offence:
In 2004, I started hanging out with the wrong group of people who were older than me introduced me to drugs, specifically MDMA. In 2005, when I was 19, I was peer pressured by my group of friends to sell heroin as they were telling me how easy it was to make money. At the time, I was gambling a lot and wanted to make money to support my gambling habit.[36]
[36] Exhibit A1, Statement of Applicant, [21].
In June 2006 the Applicant was convicted in the District Court of New South Wales of Supply prohibited drug > indictable quantity (not cannabis) and was sentenced to two years imprisonment with a 15-month non-parole period. The sentencing remarks of Judge Donovan detail the circumstances surrounding this offence.[37] In August 2005, the police stopped a vehicle in which the Applicant was a passenger. A water balloon containing 0.42 grams of heroin was found in the Applicant’s pocket, and a further thirty water balloons containing heroin were found in the vehicle’s glovebox. The total amount of heroin found was 7.82 grams. The Applicant admitted in a police interview that he sold heroin to support himself financially. He claimed that this was only the second time he had sold illicit drugs, a claim rejected by Judge Donovan, who found that he and his co-offender were supplying at a street level to users.[38] His Honour did not accept that this was an isolated incident because there was a mobile telephone in the rear pocket of the Applicant’s pants which rang constantly within an hour of the police first speaking to him, generating some 99 missed calls.[39]
[37] Exhibit G, G9,52-54.
[38] Exhibit G, G9,54.
[39] Exhibit G, G9,53.
While the Applicant was in prison, he completed a young offender's program and completed a course which was the equivalent of year 10. He also completed a young apprentice program.[40]
[40] Exhibit A1, Statement of Applicant, [23].
Larceny offences
During cross-examination, the Applicant was questioned about a number of larceny and shoplifting offences for which he was convicted in 2002 and 2008. These offences involved stealing clothing in the company of others from stores ranging in value from $150 to some $4000-$5000.[41] The Applicant claimed that he just admitted to these offences without thinking.
[41] Transcript of proceedings, 27 January 2022, 65-72; Transcript of proceedings; 28 January 2022, 156.
Driving offences
During cross-examination the Applicant was questioned about the driving offences he committed in 2005 and 2008. He agreed that he committed these offences and that he used a false name and fraudulently using someone else’s driver’s licence. He told the Tribunal that he is sorry for these offences:[42]
I was stupid. I got no license and I borrow a friend license of mine and I just used it. It was stupid mistake that I did, and I'm very sorry.
[42] Transcript of proceedings, 27 January 2022, 80.
The Applicant denied that this behaviour was fraudulent but instead was ‘stupid’.[43]
[43] Transcript, of proceedings, 27 January 2022, 80.
Drug offences
In December 2017 he was convicted in the Local Court of Possess prescribed restricted substance being MDMA and oxazepam and Reckless driving. He was fined a total of $1,100 and was placed on a two-year good behaviour bond. The Applicant told the Tribunal that he was feeling down at this time and his business was not going well. He had taken only one ecstasy tablet and there were two or three in the bag when he was pulled over by police.[44]
[44] Transcript of proceedings, 27 January 2022, 29.
In July 2019, the Applicant was convicted in the District Court of Cultivate large commercial quantity of cannabis, Supply indictable quantity of cannabis, Use electricity without authority, Drive dangerously after police pursuit. The bonds imposed in December 2017 were also called up.[45]
[45] Exhibit G, G6, 33.
The circumstances of the offending are detailed in the sentencing remarks of Judge English dated July 2019.[46] In early April 2018, NSW Police were conducting surveillance at a property in western Sydney suspected of being used in the cultivation of cannabis. The next day, police observed the Applicant leaving the cannabis cultivation house in a Toyota HiAce van. After following the Applicant for some time, the police activated lights and sirens, but the Applicant did not pull over. He failed to stop, and a police pursuit commenced, during which the Applicant drove approximately 60 kilometres per hour in a 50 kilometre per hour speed zone and then accelerated to speeds of up to 80 kilometres an hour. The Applicant stopped due to traffic congestion at the roundabout on the intersection of Governor Macquarie Drive and Barry Road. A police officer attempted to open the door of the van the Applicant was driving. The traffic moved and the Applicant continued driving and did a U-turn at the roundabout to escape police, but they blocked the exit. He then drove his vehicle into the police vehicle, colliding with the left rear of the police vehicle, causing his van to stop. The Applicant was removed from the van. Police searched the van and located a large amount of cannabis in boxes amounting to 8,269.5 grams of cannabis leaf. A short time later, police executed a search warrant on the premises under surveillance and located a sophisticated hydroponic system built to grow cannabis plants. The Applicant had been living at the premises and was ‘minding’ the premises ‘for some time’. There were six fully equipped cannabis growing rooms, with 273 cannabis plants and eight kilograms of cannabis leaf that had been harvested.
[46] Exhibit G, G7,36-49.
Judge English found that whilst the cultivation was small in terms of the number of plants that constitute a commercial quantity, the set up was relatively sophisticated and in this case the principal organisers had not been identified or apprehended.[47] Her Honour further stated that principal organisers use offenders like the Applicant, who are often vulnerable, suffering from addictions, unemployed or in need of finances.[48] Police also discovered there were illegal connections to unmetered electricity mains that presented a risk of electrocution to any unsuspecting person and increased the risk of fire.[49] Endeavour Energy inspected the street connection point and discovered that as a result of the high load from the hydroponic equipment, the protective insulation on one of the phases had completely melted off and was close to melting through to another phase.[50]
[47] Exhibit G, G7,46-47.
[48]Exhibit G, G7,47.
[49] Exhibit G, G7,40.
[50] Exhibit G, G7,40.
Her Honour found that there was no evidence that the Applicant participated in organising or financing the cultivation:[51]
There is no evidence that [the Applicant] was involved in any significant way in planning or organising this cultivation or financing it … The facts fall short of enabling a finding to be made beyond reasonable doubt that he was attending the crop.. The most that can be found beyond reasonable doubt is that the was a minder and obviously responsible for delivering the harvested crop elsewhere.
[51] Exhibit G, G7,43.
Judge English considered this offending to be more serious ‘than most’ because the dangerous nature of the bypass could have resulted in an explosion impacting neighbouring properties, two of the occupants of which relied on life support equipment.[52] She also noted the Applicant’s prior driving offences, saying that his driving record was ‘appalling’ and showed a ‘blatant disregard’ for traffic laws.[53] Her Honour accepted that the Applicant’s driving offences fell into the lower end of the range of seriousness, but he had posed a significant danger to the police officers who pursued him and with whom he collided.[54]
[52] Exhibit G, G7,44.
[53] Exhibit G, G7,45.
[54] Exhibit G, G7,46.
Her Honour remarked that the Applicant was ‘no stranger to the criminal justice system’ and that ‘nothing has deterred him from reoffending in this way’. She did not accept that the Applicant was genuinely remorseful or contrite, other than to the extent of his guilty pleas. In her opinion, the only aggravating factor was that the Applicant was subject to two good behaviour bonds imposed in December 2017 for two years at the time of the offending. His criminal antecedents did not amount to an aggravating factor, ‘but certainly disentitled him to leniency and as such that issues of denunciation, retribution and punishment now loom large in any further sentences to be imposed.’[55] In her view, the Applicant’s risk of reoffending was ‘moderate’. He knew ‘full well the risks he was taking and engaging in this type of criminal behaviour.’[56]
[55] Exhibit G, G7,44.
[56] Exhibit G, G7,45.
Judge English considered the Applicant’s willingness to address his offending behaviour and reduce his risk of recidivism. Her Honour noted that the Applicant had participated in rehabilitative programs in the past, but this had ‘not helped him from relapsing or reoffending’ and this did not bode well with his future prospects. Her Honour stated that whilst the Applicant had participated in programs in prison, the Applicant had ‘guarded’ or ‘moderate’ prospects of rehabilitation because he had continued to reoffend, had done nothing to address his drug addiction, and his offending behaviour had been escalating. [57]
[57] Exhibit G, G7,44.
Her Honour was satisfied that the offence of cultivating a large commercial quantity of cannabis involved a ‘low level of moral culpability’.[58] Her Honour made a finding of special circumstances to allow for an extended period of supervision on parole to enhance the Applicant’s prospects of rehabilitation. The Applicant was sentenced to a total effective sentence of five years’ imprisonment with a non-parole period of three years.
[58] Exhibit G, G,48.
The Applicant was questioned about his most recent offending during cross-examination. He described it as a ‘silly little mistake’. He was asked to clarify what he meant by this. He explained that he had borrowed money from the person who asked him to mind the drug cultivation and he did so to repay the debt he owed:[59]
I asked him to lend some money so I can start off my business. And that time I still didn't know that he do something like this. Then later on when he asked the money back from me, and that's when I've got - I couldn't pay him. I'd say, 'I pay you slowly.' But he said, 'Your time is up.' You know. Like he need money. Then he bring me to that house to do. So that's when I asked him (indistinct) 'I'm going to do for you and I'm just going to make it clear my debt and that's it. I don't want to be under your skin anymore.' I - and that time I just say - I say to myself, 'I can't back off, because I owe him debt and now I know he relate to this, I don't know if he's a gang member or whatever, he's going to harm my family or my son or my wife, my father, you know.'
[59] Transcript of proceedings, 27 January 2022, 85.
Remorse and responsibility for offending
In his oral evidence at the hearing the Applicant said that he pleaded guilty to all the offences in relation to the cultivation of the drug crop. He stated that he ‘did stupid things’ and is ‘very sorry for that.’ [60]
[60] Transcript of proceedings, 27 January 2022 ,24.
In his statement the Applicant wrote:[61]
I am painfully aware of the consequences of my choices and actions, and the pain that I have caused my family. If ever I had a reason to change, the last few years have shown me that reason.
I really want to make up for all of my mistakes and the effect that it has had on my family especially my son and wife.
I have no intention to go back to a life of crime since seeing the effect that it has had on my family especially my son and wife. When I am released, I plan to work to support my family.
[61] Exhibit A1, Statement of Applicant, [58]-[60].
The Pre-release report dated 6 April 2021 records that during the assessment of the Applicant undertaken for the purposes of the report, he accepted responsibility for some aspects of his offending, namely his involvement in drug supply. However, whereas he could identify the wider impacts of some drugs on the community, he minimised the effects of cannabis, stating that ‘he does not see it as a dangerous drug’.[62]
[62] Exhibit R1, TB10,169.
The report noted that while the Applicant ‘has demonstrated remorse for his offending, his regret appears to be primarily for self-concern and the subsequent lack of freedom he has experienced as a result of being incarcerated.’[63]
[63] Exhibit R1, TB10,169.
Courses and conduct in gaol and immigration detention
While the Applicant was in prison he participated in numerous programs, and he provided certificates and evidence of his program participation. He completed the ‘Save-a-mate’ program run by the Red Cross which covered topics including substances and their classification, effects and pattern of substance abuse, risk factors, signs and symptoms of an overdose emergency, harm reduction strategies, and first aid responses.
The Applicant was employed in gaol in the vegetable processing and furniture units as a leading hand. The Pre-release report dated 6 April 2021 records that the Applicant’s behaviour in custody ‘has been positive with his more recent behaviour being unremarkable.’ He is reported to have had ‘a good rapport with custodial officers, at times assisting custodial staff by acting as a translator for other Vietnamese inmates with limited English skills.’[64]
[64] Exhibit R1, TB10,171.
In his statement the Applicant described his activities in gaol and the impact on him of this term of imprisonment:
My imprisonment was the wake-up call that I needed to realise how much my family rely and depend on me.
I have participated in a number of programs while I have been in prison, including the Australian Red Cross program Community Based Health & First Aid (CBHFA). I am very thankful to the Australia Red Cross in giving me the opportunity to complete this course and help out the community
I have also volunteered as much as I could to prepare myself to work hard in the real community outside of prison. I became the Asian delegate to help new inmates get used to the process in prison weekly and also helped a lot of Vietnamese inmates with translating. As part of the Red Cross volunteer group, I promoted education and access to hygiene during COVID-19. I also did hand washing workshops across the gaol and helped plan a lot of projects like Father's day and Christmas events. The volunteer work and programs are not compulsory and I have chosen to do the programs and volunteer my time as I want to use my time in prison to turn my life around.
The Applicant has been involved as a volunteer with the Australian Red Cross program Community Based Health and First Aid (CBHFA) since 26 February 2020. He completed six core modules of the Community Based Health and First Aid Program on 24 June 2020.[65] He was trained as a ‘Special Status’ volunteer with CBHFA, which involved prisoners working as volunteers to deliver programs that identify and improve health, wellbeing and safety of the prison community in the prison setting. The Applicant volunteered on a weekly basis and contributed more than 240 hours of his time to Red Cross volunteering to ensure that a variety of the projects, developed and implemented by the volunteers have continued. During COVID-19, the Applicant was responsible for managing the soap and hand hygiene project, delivered quarterly hand washing education workshops across the gaol and maintained and reported on the data collection for the project. As a result, all the Red Cross volunteers, including the Applicant, were recognised by a Governor’s commendation for their COVID-19 response work.
[65] Exhibit G, G26,123 (certificate of graduation).
A report from the Department of Corrective Services records that in November 2019 the Applicant was reprimanded for drug possession in prison. The Applicant explains that this related to a prescription sleeping pill (Seroquel) found on the TV bench of his cell, which belonged to his previous cellmate, to whom it was prescribed.[66]
[66] Transcript of proceedings, 27 January 2022, 28.
On 4 July 2021, the Applicant became eligible for, and was granted, parole. However, as a result of the cancellation of his visa, he was transferred to immigration detention. The Client incident report shows that there are no records of institutional breaches or misconduct in detention.[67]
[67] Exhibit G, G4, 23.
Letters of support
The Applicant provided letters of support written by Judy Harper, Anton Stavreas and Reverend Scott Kelly to provide evidence of his rehabilitation. The authors of these letters were not cross-examined at the hearing, and the Tribunal has placed some albeit limited weight on the information contained therein.
Reverend Scott Kelly
In his letter dated 19 May 2020,[68] Reverend Scott Kelly, Chaplain at St Heliers Correctional Centre states that the Applicant was part of the Red Cross pilot program in prison and assisted other Asian inmates in their interactions with Corrections officers and staff, and informed Asian inmates of new protocols and hygiene maintenance.[69] Reverend Kelly states that the Applicant has learned from his past mistakes and intends to work and support his family. He wants to be an upstanding member of the community and not put his relationship with his family at risk as he has ‘too much to lose’. He states that the Applicant’s offending is at the low end of the criminal spectrum and ‘he has complied with all tasks set for him in custody’.
[68] Exhibit G, G24,120-121.
[69] Exhibit G, G24,120-121.
Anton Stavreas
In his letter of support dated 24 June 2020,[70] Anton Stavreas, Community Based Health and First Aid (CBHFA) Co-ordinator of the Justice Program NSW/ACT states that one of the Applicant’s strengths is ‘his reliability and ability to communicate positively in a way that encourages respectful relationships.’ Mr Stavreas also has observed that the Applicant is ‘willing to engage in a variety of program activities, and has provided support and encouragement for others to participate meaningfully.’ He reports that his observations of the Applicant have been positive, he is willing to engage in a variety of program activities, has provided support and encouragement for others to participate meaningfully, and has also been willing to participate in the programs’ external evaluation.[71]
[70] Exhibit G, G25,122.
[71] Exhibit G, G25,122.
Judy Harper
In her letter of support dated 1 May 2021, Judy Harper, Regional Manager of the Australian Red Cross details the Applicant’s role as a volunteer and adds:[72]
He has been an active and positive contributor to the volunteer group, supporting the development of new projects, reporting back on community needs, and being the promoter of the work of Red Cross across the gaol community. [The Applicant] has been a positive, proactive, and diligent volunteer over the past 14 months.
[72] Exhibit G, G29,137.
Ms Harper further states that the Applicant has supported the volunteer group by openly sharing his personal reflections and learnings, which contributed to positive culture and growth, and had taken on a mentoring role with the new group of Red Cross volunteers.[73]
[73] Exhibit G, G29,138.
During cross-examination the Applicant was asked whether he became involved with the Red Cross during 2020 so as to improve his chances of being able to remain in Australia. He stated:[74]
I'm not doing all this just to fake or to get help me out of this place, help me to stay back in Australia, you know, but I do it from my heart and I do it from my life experience that I stuffed up and it's all changed me a lot.
[74] Transcript of proceedings, 28 January 2022, 107.
Risk of re-offending
In his Personal Circumstances Form dated 3 February 2020 the Applicant addressed the risk of him re-offending:[75]
I have to say that I will never … commit any crime ever again. Jail have teach me a lot and I have learned a lot of things. Its my son and my family I’m gonna think of before I do anything and help the community better than commit a crime.
[75] Exhibit G, G16,97.
The Pre-release report dated 6 April 2021 noted that despite the Applicant’s significant drug related offending, he denies being a user of illicit drugs. In the author’s opinion, ‘this is suggestive that his offending is underpinned by entrenched acceptance of anti-social and unlawful behaviour.’[76] The report assessed the Applicant at a ‘medium-low risk of reoffending’ according to the Level of Service Inventory - Revised (LSI-R).[77]
[76] Exhibit R1, TB10,168.
[77] Exhibit R1,TB10,172.
Formal counselling letter – January 2007
In relation to the NOICC sent to the Applicant by DIAC on 31 January 2007, the Applicant stated in his statement:[78]
In 2007 when I was 21, I remember receiving a letter from the Department of Home Affairs warning me that if I got in trouble with the law in the future I could get my visa cancelled. At the time I was young and still hanging out with the wrong group of friend and occasionally taking MDMA at parties. Regrettably, when I received the letter I didn't think to care much about it and did not give it much though. However I know now that I should have paid more attention to it and the serious consequences of my offences which have now resulted in me being in detention.
[78] Exhibit A1, Statement of Applicant, [24].
During cross-examination, the Applicant was taken to the letter he provided to the Department dated 14 February 2007 in response to the NOICC. He wrote that he was ashamed for what he had done and he would not do such things again. He stated that he had ‘broken the cycle of my dependency on the drug trade, and [felt] better equipped mentally, through having taken the appropriate and necessary first steps, to live in a satisfactory manner.’[79]
[79] Exhibit R1 TB12,213.
Psychological assessment
Tim Watson-Munro interviewed the Applicant utilising telehealth facilities at Villawood Immigration Detention Centre and provided a report dated 21 December 2021.[80] He also spoke to the Applicant’s father, his current wife, TTN, and his former partner, TBLT, with a view to understanding the Applicant’s history and the impact that his deportation will have upon these individuals as well as his son.
[80] Exhibit A1, Watson-Munro report, 1-17.
In his report, Mr Watson-Munro noted the Applicant’s early offending and his incarceration in 2008 which was followed by a period during which the Applicant did not offend subsequent to him being released from custody in 2009 until 2015. This he attributed to the structure and supervision afforded at that time by his former partner, TBLT.[81]
[81] Exhibit A1, Watson-Munro report, 3.
Mr Watson-Munro found that the Applicant’s recent offending appears to have occurred in the context of escalating financial pressure and, in association with this, him lacking the skills to extricate himself from a highly threatening situation. The Applicant told him that he has no desire to borrow money in the future, nor to reoffend. He acknowledges that he would benefit from skills training, integral to broader treatment to address this issue, which can be achieved through appropriate social skills training. He is also highly aware of the consequences for him if he reoffends in any manner and how this in turn will impact upon those that he loves most.[82]
[82] Exhibit A1, Watson-Munro report, 13.
In Mr Watson-Munro’s opinion, there are a number of protective factors in the Applicant’s case which will reduce the likelihood of him reoffending. These include his maturation, his expressions of remorse, his strong family ties, his commitment to re-join the workforce, to the point where he has a job available to him, and an absence of any history of substance use referable to abusing alcohol or illicit drugs.[83] In addition, the Applicant has been actively involved doing voluntary work whilst in custody and has been favourably described by a number of people with whom he has worked. He concluded:
[The Applicant] has demonstrated a strong motivation to mend his ways and in this regard, I note very positive comments regarding his behaviour and work ethic whilst in custody. This in my view indicates that he is trending from a moderate risk to a low risk of reoffending.[84]
[83] Exhibit A1, Watson-Munro report, 13.
[84] Exhibit A1, Watson-Munro report, 15.
Relationship with former partner and son
In about 2008 the Applicant formed a relationship with TBLT. In 2010, when the Applicant was aged 24 years, the Applicant’s son, LNPT, was born.[85] The Applicant’s relationship with TBLT and the birth of LNPT was a source of stability in the Applicant’s life. He stopped using MDMA as a result of TBLT’s influence.[86]
[85] Exhibit A1, Statement of Applicant, [8].
[86] Exhibit A1, Statement of Applicant, [25].
Although the Applicant and TBLT ended their relationship in about 2013, the Applicant continued his role as a loving father to LNPT and as a supporting former partner to TBLT. In his statement dated 5 February 2020, the Applicant wrote that he and LNPT have a ‘very good connection’ and he ‘cannot live without him’.[87] After he and TBLT separated he provided practical support to TBLT as they shared co-parenting arrangements for LNPT. He would pick up LNPT from school or childcare when TBLT was working, and they had weekend sleepovers, spoke on the telephone every week, and spent Christmas and ‘New Year’ together.[88] He also would also give TBLT approximately $200-$250 per week to support LNPT.[89]
[87] Exhibit G, G17, 103.
[88] Exhibit A1, Statement of Applicant, [42]; Transcript of proceedings, 27 January 2022, 17-18.
[89] Exhibit A1, Statement of Applicant, [43]; Transcript of proceedings, 27 January 2022, 17.
When the Applicant was in Dawn De Loas Correctional Centre, TBLT would take LNPT to visit his father on a regular basis.[90] However, when he was transferred to St. Heliers Correctional Centre, it was too far for TBLT to travel for LNPT to see his father, and visitation rights were cancelled when COVID-19 began.[91] Following this, TBLT would book video conference sessions every two weeks so the Applicant could see and speak to LNPT.[92] The Applicant told the Tribunal that he and LNPT are ‘very close’ and he has ‘never been apart from him for this long.’[93] He currently speaks on the phone to his son via video call every weekend.[94]
[90] Exhibit A1, Statement of Applicant, [44].
[91] Exhibit A1, Statement of Applicant, [45].
[92] Exhibit A1, Statement of Applicant, [45].
[93] Transcript of proceedings, 27 January 2022. 17.
[94] Transcript of proceedings, 27 January 2022, 18.
In his statement, the Applicant wrote that TBLT has told him how much him being in prison has affected LNPT and ‘it breaks [his] heart.’ He is ‘ashamed of the hurt’ he has inflicted on LNPT because of his actions. He wants to be there for him as he just finished grade 5 and will be in high school after next year.[95]He becomes depressed when he thinks about how much he has already missed as his son grows up while he has been incarcerated. When he is released, he wishes to continue the shared arrangement with TBLT and support and be there for his son during his teenage years and watch him grow up into a responsible adult.[96]
[95] Exhibit A1, Statement of Applicant, [46].
[96] Exhibit A1, Statement of Applicant, [47].
In her statement dated 11 January 2022, TBLT confirmed that she and the Applicant had a co-parenting arrangement for LNPT prior to his incarceration and that he helped her to raise LNPT and provided practical and financial support.[97] In a letter of support dated 5 February 2020, TBLT stated that LNPT was ‘shattered’ when he discovered two years ago that his father was in prison, and at the age of six years he ‘went into depression mode’.[98] LNPT ceased communicating with anyone except TBLT, and he stopped talking at school. He would cry at night and it ‘breaks [her] heart’. She stated that LNPT does not talk about his feelings, but she knows he misses his father a great deal. When he visits his father, they hug and cry.[99]
[97] Exhibit A2, Statement of TBLT,1, [8].
[98] Exhibit G, G18,108-109.
[99] Exhibit G, G18,109.
In her oral evidence at the hearing, TBLT told the Tribunal that she has two other children aged five years and two months respectively and she is separated from their father.[100] They are currently living in a granny flat and have assistance from Centrelink.[101] She told the Tribunal that the Applicant often chats on the phone with her five year old son.[102] If the Applicant is released he will probably take LNPT and his step-brother to lessons on weekends, help her out with some weekly income, and take them to activities while she looks after the baby.[103] She confirmed that before he went to gaol the Applicant would regularly give her $200 or $250 per week to help her pay for LNPT’s expenses.
[100] Transcript of proceedings, 28 January 2022, 93.
[101] Transcript of proceedings, 28 January 2022, 93.
[102] Transcript of proceedings, 28 January 2022, 94.
[103] Transcript of proceedings, 28 January 2022, 96.
TBLT told the Tribunal that if the Applicant were returned to Vietnam it would be hard for her and the children to visit him, as financially she cannot afford the airline tickets.[104]
[104] Transcript of proceedings, 28 January 2022, 97-99.
In an undated statement, LNPT wrote:[105]
Please don’t let my dad go back to Vietnam because my mum is already looking [after] my little brother and I need my dad to look after me.
[105] Exhibit G, G19,111.
In his report, Mr Watson-Munro opined that LNPT will be ‘psychologically affected if his father is deported, both in the immediate term and into the indefinite future. Although he is in custody in Australia, there is some comfort to the son knowing that his father is in Sydney.’[106] He further expressed the view that should the Applicant be removed, LNPT will be impacted as he ‘traverses the difficult adolescent years into adult life’ and that the Applicant will have a ‘positive impact upon his child’s future if he is permitted to remain in Australia.’ [107]
[106] Exhibit A1, Watson-Munro report, 14.
[107] Exhibit A1, Watson-Munro report, 14.
Relationship with TTN
In 2014, the Applicant formed a relationship with TTN,[108] who is also a citizen of Vietnam who came to Australia as the holder of a student visa. The Applicant and TTN were married in August 2015 and rented a home together.[109] They travelled to Vietnam between 15 August 2015 and 6 September 2015.[110] This was the first time the Applicant had returned to Vietnam since his arrival in Australia in 1997.
[108] Exhibit A1, Statement of Applicant, 4, [48].
[109] Exhibit A1, Statement of Applicant, 4, [49].
[110] Exhibit G, G13,74.
Departmental records show that the Applicant lodged a Combined Partner visa application and TTN was granted a Partner (Temporary) Class UK Subclass 820 on 2 March 2017. Departmental notes indicate that processing of the stage two permanent stage of the application for the Partner (Residence) Class BS Subclass 801 visa is currently on hold because the Applicant is currently not an eligible sponsor because his visa has been cancelled and he is therefore an unlawful non-citizen.
In his statement, the Applicant wrote that it has not been easy for his wife while he has been in prison and detention. Yet, she has continued to ‘stay by [his] side and support [him] through this time.’[111] They are committed to each other and he is ashamed of the stress that he has put her through. When he is released, they have plans to have children but the main focus first is for him to work and save up money for their family.[112] He claims that his wife would be very sad if he was removed from Australia because they would be separated and unable to support each other.[113]
[111] Exhibit A1, Statement of Applicant, 4, [51].
[112] Exhibit A1, Statement of Applicant, 4, [53].
[113] Exhibit G, G4,28.
In her letter of support, TTN states that while she and the Applicant have been separated for some years, she is financially dependent on him and ‘can’t really do anything without him’ as he is ‘the man of the family’ and supports them. She asks that he be given an opportunity to remain in Australia and reiterates that he regrets his crimes, will change to become a good father and son, and is committed to never reoffending.[114]
[114] Exhibit G, G4, 28.
Mr Watson-Munro spoke to TTN who confirmed the Applicant’s expressions of remorse and her high level of emotional dependence upon him.[115] TTN has only been able to find part-time employment in Australia and she attributes this to the fact she does not have a strong command of the English language. Mr Watson-Munro opines that if the decision to cancel the Applicant’s visa is not revoked, TTN will experience significant emotional and financial hardship and will ‘suffer a great deal in his absence.’[116]
[115] Exhibit A1, Watson-Munro report,9.
[116] Exhibit A1, Watson-Munro report, 15.
In her oral evidence at the hearing, TTN told the Tribunal that she is currently residing with her cousin on the Gold Coast. Her cousin runs a bakery shop, and she is assisting her and earning some money. When the Applicant is released, she will return to Sydney to live with him.[117]
[117] Transcript of proceedings, 27 January 2022, 76.
TTN said that she has not thought about what she will do if the Applicant is returned to Vietnam. She only has two cousins in Australia and the other members of her family reside in Vietnam. She confirmed that she will stay with the Applicant but said that it will be very difficult for them if they return to Vietnam.[118]
[118] Transcript of proceedings, 27 January 2022, 76.
Father
Prior to his incarceration, the Applicant provided his father with assistance in paying his rent.[119] The Applicant’s father has recently suffered a back injury at work and cannot work.[120] In his oral evidence at the hearing, the Applicant told the Tribunal that his father is in a long-term relationship with his partner of thirty years, and he has a step-brother who is his father’s partner’s son from another relationship.[121]
[119] Exhibit G, G17,104 (applicant’s letter).; Transcript of proceedings, 27 January 2022, 25.
[120] Transcript of proceedings, 27 January 2022, 25.
[121] Transcript of proceedings, 28 January 2022, 119.
Family in Vietnam
In 2012, the Applicant’s grandmother, who was his last surviving connection to Vietnam, died.[122]
[122] Exhibit A1, Watson-Munro report, 16.
Future plans
The Applicant has an offer of employment with his friend QKN should he be released into the community.[123] The Applicant told the Tribunal that he will be employed by QKN as a handyman in his carport and roofing business. They have agreed that he will be paid approximately $200 per day.[124] He plans to work for him for one or two years and then start his own business.
[123] Exhibit A1, Statement of QKN.
[124] Transcript of proceedings, 28 January 2022, 116-117.
The Applicant told the Tribunal that when he is released he will live with his cousin in Belmore and contribute to the rent. He also intends to continue to financially support TTN, TBLT, LNPT and his father.
The Applicant also intends to continue volunteering with the Red Cross.[125] According to Ms Harper, the Applicant has kept in contact with her since being detained, and he has continued to express his desire to volunteer.[126] She will support his application for roles when he is in the community.[127]
[125] Transcript of proceedings, 28 January 2022, 110.
[126] Exhibit A1, Statement of Judy Harper.
[127] Exhibit A1, Statement of Judy Harper.
Impediments on return
In his statement the Applicant wrote:[128]
I do not have any family members or friends in Vietnam. I had travelled back in Vietnam in 2015 to introduce myself to my wife's family members and travelled to to (sic) Vietnam in 2016 and 2017 to visit my wife's family. I am not very close to my wife's family and if I had to return to Vietnam, I would have no support networks.
If I have to return to Vietnam, I would not have a job. It would take me awhile to find a job. I do not have any family who could help me find a job.
If I have to return to Vietnam, I will have no money to support myself because I have been in prison and have not been able to earn an income. This will be particularly hard because I am likely to have difficulty finding a job.
If have to return to Vietnam, I will not be able to make enough money to send money to [TBL] to support my son.
[128] Exhibit A1, Statement of Applicant, 6, [72]-[75].
The Applicant told the Tribunal about his fears about returning to Vietnam: [129]
To be honest with you, I will lose everything, my life will be over. And as you know, I come over here as a young kid and now my country is a Communist country so I don't know what they're going to do to me if they see me go, return back there to live. I don't know what going to happen to me in there, you know what I mean? The government over there, I don't know what's even going to happen to me. I came here as a little kid and now I could return there, I got deport there, it's very endanger for me too if - that's what I think in my head. And I have no family there and my father is in Australia, my son in Australia, you know and I lose my everything. I lose my whole future, I lose my life if I go back there.
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[129] Transcript of proceedings, 27 January 2022, 29-30.
1)Does the Applicant pass the ‘character test’?
In the representations and documents that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check report dated 8 January 2020 regarding his criminal convictions and sentences. This report records that in July 2019, the Applicant was convicted and sentenced in the District Court to one count of Cultivate prohibited plant >= large commercial qty cannabis – five years’ imprisonment (three years’ non-parole). The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of section 501(3A)(a) and section 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: section 501(7)(c). The Tribunal is also satisfied, for the purposes of section 501(3A)(b) of the Act, that on 31 January 2020, the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the state of New South Wales.
Having found that the Applicant does not satisfy the character test, the Tribunal finds that section 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.
2)Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether pursuant to section 501CA(4)(b)(ii) of the Act there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must in accordance with paragraphs 8 and 9 of the Direction take into account the relevant ‘primary considerations’ and ‘other considerations’.
PRIMARY CONSIDERATIONS
Primary Consideration 1 – Protection of the Australian community
The Applicant does not claim that any Australian business interests would be affected by his removal to Vietnam. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.
On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, particularly the length of time the Applicant has resided in Australia, his contributions to the community, as well as the strength and nature of the Applicant’s family and social ties in Australia, the Tribunal finds that this consideration weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Considerations 1 and 2 weigh against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s criminal offending is very serious, particularly his drug cultivation and supply offences. The moderate to low risk of him committing future criminal offences coupled with the nature and seriousness of the harm this would cause to his future victims is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant’s son for him to remain in Australia. Primary Consideration 4 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that Applicant’s serious drug offences should cause him to forfeit the privilege of remaining in Australia, and this is not outweighed by more than two decade residency in Australia and his employment contributions to the community.
In regard to the relevant Other Considerations, the impediments he will face on return to Vietnam and his links to the Australian community both weigh strongly in favour of revocation of the Mandatory Visa Cancellation Decision.
The Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked and decides that the Reviewable Decision should be set aside.
DECISION
The Reviewable Decision dated 19 October 2021 to refuse to revoke the Mandatory Visa Cancellation Decision dated 31 January 2020 is set aside and in substitution the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa is revoked.
I certify that the preceding 164 (one hundred and sixty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
....................................[SGD]....................................
Associate
Dated: 4 March 2022
Date(s) of hearing: 27 and 28 January 2022 Counsel for the Applicant: Mr S Young, Counsel Solicitors for the Applicant: Mr D San, FCG Legal Pty. Ltd. Lawyers Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore
Key Legal Topics
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Immigration
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Administrative Law
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Judicial Review
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