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

SCJD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5214 (24 December 2020)
Division:GENERAL DIVISION
File Number: 2018/4478
Re:SCJD
APPLICANT

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

DECISION
Tribunal:Senior Member D. J. Morris
Date:24 December 2020
Place:Melbourne

The Tribunal affirms the decision under review.
……[sgd]……………………………………….
Senior Member D. J. Morris
Catchwords
MIGRATION – remittal to Tribunal – where the applicant held Class BB Subclass 155 Five Year Resident Return visa – where the visa was mandatorily cancelled because of substantial criminal record – where the applicant is a Vietnamese citizen – finding that the applicant does not pass character test – application of Ministerial Direction No. 79 – whether another reason to revoke mandatory cancellation of visa – primary considerations – protection of the Australian community – the nature and seriousness of the applicant’s conduct – the risk should the applicant offend again – the best interests of affected minor children – the expectations of Australian community – other relevant considerations – international non-refoulement obligations – the strength, nature and duration of the applicant’s ties to Australia – extent of impediments if removed – discretion not enlivened – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 35
Migration Act 1958 (Cth), ss 36, 200, 499, 500, 501, 501CA
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589
Secondary Materials
Convention relating to the Status of Refugees, opened for signature on 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Migration Act 1958 – Direction under s 499 – Direction No. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (Commenced 7 September 2017)
Migration Act 1958 – Direction under s 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)
Vuong, et al, ‘Strengthening advocacy efforts with empirical evidence: A case example of the conduct, uptake and utilisation of research in drug policy decision-making in Vietnam’, in International Journal of Drug Policy 49 (2017).
REASONS FOR DECISION
Senior Member D. J. Morris
24 December 2020
BACKGROUND TO HEARING

On 11 April 2019 Her Honour Justice Davies of the Federal Court of Australia issued orders quashing a 25 October 2018 decision of the Tribunal and remitting this matter for fresh consideration by the Tribunal according to law. That order precipitated a hearing on 11 September 2019.
The Tribunal had previously issued an order on 20 August 2018 under section 35 of the Administrative Appeals Tribunal Act 1975 prohibiting the publication of the name of the Applicant. He will be known in these reasons by the initials ‘SCJD’. Certain other facts that might tend to identify him will also be anonymized.
SCJD was born in 1968 and is a citizen of the Republic of Vietnam. He first arrived in Australia in July 1981. He was granted a Class BB Subclass 155 Five Year Resident Return visa (the visa) on 24 August 2010. The visa was cancelled on 15 September 2017 by a delegate of the Respondent under section 501(3A) of the Migration Act 1958 (the Act) on the basis that SCJD did not pass the character test in the Act because of section 501(6)(a): he has a ‘substantial criminal record’ because he has been sentenced to a term of imprisonment of twelve months or more (section 501(7)(c) of the Act).
SCJD was invited to make representations to the Department (now the Department of Home Affairs) as to whether there was another reason why the mandatory cancellation of his visa should be revoked. On 2 August 2018 a delegate of the Respondent decided not to revoke the mandatory cancellation. It is this decision that is before the Tribunal.
As mentioned above, a hearing was held on 11 September 2019. SCJD was represented by Mr Min Guo of counsel, instructed by Mr Allan Zabrdac of Carina Ford Immigration Lawyers. The Respondent was represented by Ms Siran Nyabally of The Australian Government Solicitor.
The Applicant lodged a Statement of Facts, Issues and Contentions dated 21 August 2019 with the following attachments:
·DFAT Country Information Report – Vietnam, dated 21 June 2017;
·World Health Organisation fact sheet on hepatitis C, printed 21 August 2019;
·Press article from Viet Nam News on hepatitis C, dated 3 May 2018.
The Applicant also lodged a Statement of Facts, Issues and Contentions dated 19 September 2018, and a Statement of Facts, Issues and Contentions in Reply, dated 6 September 2019. The Applicant also lodged:
·Article from the RAGP titled “Renewed Calls to Fully Subsidise Methadone Treatment”, dated 10 April 2019;
·Article from Psychiatric Services in Advance, titled “Medication-Assisted Treatment with Methadone: Assessing the Evidence”, undated;
·Article from the NSW Bureau of Crime Statistics and Research titled “The Effectiveness of Methadone Maintenance Treatment in Controlling Crime: An Aggregate Level Analysis”, dated March 2004;
·Extracts of article titled “20 Questions and Answers Regarding Methadone Maintenance Treatment and Research”, undated;
·Victorian Department of Health and Human Services document titled “Policy for Maintenance Pharmacotherapy for Opioid Dependence”, dated 2016;
·Victorian Department of Justice and Regulation document titled ‘Victorian Prison Opioid Substitution Therapy Program Guidelines’, dated 2015;
·Commonwealth Department of Health and Human Services Final Report titled ‘Review of Methadone Treatment in Australia”, dated October 1995;
·News item titled Vietnam’s Drug Rehab Centers Under Fire, dated 8 September 2011;
·South China Morning Post article ‘No Human Rights at All’, dated 11 December 2017;
·Human Rights Watch document titled “The Rehab Archipelago”, dated September 2011;
·Article titled “Why the Vietnamese Don’t Want to Go to Rehab”, dated 27 May 2010;
·Undated article titled “Cold Turkey at Vietnam’s Compulsory Drug Rehab Centers”;
·Alcohol & Drug Foundation information sheet on Buprenorphine, dated 3 October 2018;
·International Journal of Drug Policy commentary article titled “Strengthening Advocacy efforts with empirical evidence: A Case Example of the Conduct, Uptake, Utilisation of Research in Drug Policy Decision-Making in Vietnam”, dated 26 July 2017;
·Article from Vox titled “There’s a Highly Successful Treatment for Opioid Addiction. But Stigma is Holding It Back”, dated 15 November 2017;
·BioMed Central Infectious Diseases article titled “Current Challenges and Possible Solutions to Improve Access to Care and Treatment for Hepatitis C Infection in Vietnam: A Systematic Review”, dated 2017;
·Article titled “How Long Does Suboxone Stay in Your System”, dated 23 May 2017;
·The Recovery Village article titled “How Long Does Suboxone Stay in Your System?”, undated;
·National Clinical Guidelines and Procedures for the use of Buprenorphine in the management of opioid dependence, dated 2006;
·Kangan Institute certificates;
·St Vincent’s Hospital Melbourne certificate;
·Undated Statement of SCJD;
·Psychological Assessment for Immigration Purposes, Dr Annie Cantwell-Bartl, dated 19 September 2018;
·Statutory Declaration by ‘BYP’, dated 19 September 2018;
·Statutory Declaration by ‘TTH’ dated 19 September 2018;
·Statutory Declaration by ‘CTP’, dated 20 September 2018; and
·Statutory Declaration by ‘TDN’, dated 20 September 2018.
The Respondent lodged two volumes of ‘G’ documents (GD) on remittal, a volume of supplementary ‘G’ documents, a volume of further supplementary ‘G’ documents and a Statement of Facts, Issues and Contentions dated 4 September 2019.
At the conclusion of the hearing, the Tribunal gave leave for parties to make further written submissions. On 25 September 2019 the Applicant lodged further submissions, and on 2 October 2019 the Respondent lodged a document of further contentions. All these documents were taken into account by the Tribunal.
Section 501(3A) of the Act is a mandatory cancellation power. It provides that the Minister, or his or her delegate, must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test and under section 501(3A)(b) of the Act 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.
A decision-maker may (under section 501CA(4) of the Act) revoke the mandatory cancellation of a visa if the person whose visa was cancelled makes representations within the relevant time period, and the decision-maker determines that the person passes the ‘character test,’ or there is another reason why the mandatory cancellation should be revoked, as provided for under s 501CA(4)(b)(ii) of the Act.
If the Tribunal finds that SCJD does not pass the character test, the sole issue before the Tribunal then becomes whether there is another reason why the original decision to cancel the visa should be revoked. In this task, the Tribunal examines the factors for and against revoking the cancellation. If the Tribunal, standing in the shoes of the Minister, is satisfied that the cancellation should be revoked, the Minister must act on that view and reinstate the applicant’s visa (see, relevantly, the remarks of North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345 [38]).
Evidence in relation to the character test
At GD, p 34, was a National Police Certificate recording that on 26 May 2016 SCJD was convicted before the County Court of Victoria for the offence of traffic a commercial quantity of methylamphetamine for which he was sentenced to four years’ imprisonment. On the same date he was also convicted of the offences of: possess unregistered general category handgun (and sentenced to two years’ imprisonment, one year and three months of which was to be served concurrently); possess unregistered category A longarm (six months’ imprisonment, three months concurrent); possess/use/carry prohibited weapon without exemption or approval (three months’ imprisonment, two months concurrent); possess cartridge ammunition without licence or permit (convicted and fined $1,476.10); possess controlled weapon without excuse (convicted and fined $590.44); state false name when requested (convicted and fined $295.22). On the date the visa was cancelled, SCJD was serving a sentence of full-time imprisonment in a correctional institution in Victoria.
Finding in relation to character test
On the evidence before me, the Tribunal finds that SCJD does not pass the character test under section 501(3A)(a), or through the operation of subsections 501(6)(a) and (7)(c) of the Act, and because I am satisfied that he has been sentenced to a term of full-time imprisonment for a period of 12 months or more.
The remaining task for the Tribunal is to determine whether there is ‘another reason’ why the mandatory cancellation of SJCD’s visa should be revoked.
Direction under s 499 of Act – Direction No. 79
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The relevant direction in this matter is Direction No. 79 (the Direction). Under s 499(2A) of the Act, the Tribunal must comply with the Direction in considering this matter.
Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
The Direction includes the following principles at paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct,’ ‘The best interests of minor children in Australia,’ and ‘Expectations of the Australian community’ Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations,’ ‘Strength, nature and duration of ties,’ ‘Impact on Australian business interests,’ ‘Impact on victims,’ and ‘Extent of impediments if removed.’
The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.
IMMIGRATION AND VISA HISTORY
As mentioned above, SCJD was born in 1968 in Vietnam. His father was a soldier in the army of the former Republic of Vietnam and was held in a re-education centre for six years by the communist regime following the fall of Saigon in 1975 (GD, p 113). Subsequently, SCJD’s mother, together with four of her children, fled Vietnam and travelled to Malaysia where they remained in a refugee camp for some months. They entered Australia as refugees in July 1981 when the Applicant was aged 13. Two siblings subsequently came to Australia to settle in 1986. In 1992 SCJD’s father migrated to Australia.
SCJD went to school in Melbourne, finishing during grade 11. On leaving school he worked for about 12 months in factories and had part-time positions as a waiter in Vietnamese restaurants. He also helped his mother for a time in her sewing business.
SCJD’s substance abuse began around 1987. He first used cannabis and about three years later changed to heroin. By 1995 he was a heavy user of heroin. He began offending and appearing before the Courts. In mid-1997 SCJD was convicted of a drug trafficking offence and imprisoned. In late 1997 he was served with a deportation order pursuant to section 200 of the Act.
At that time deportation orders, in a policy sense, were subject to a Criminal Deportation Policy (Policy), which set out guidelines for criminal deportation. That Policy was contained in a ministerial statement by the then Immigration Minister, Mr Hand, on 24 December 1992. SCJD brought to the Tribunal an application to review the decision to deport him.
In September 1998 the Tribunal (Deputy President Forrest) decided to set aside the decision and direct the Respondent to revoke the Criminal Deportation Order. At the time, the Tribunal said (GD, pp 124-125):
I have found this is a difficult case and the competing considerations are finely balanced. Absent the applicant’s efforts at rehabilitation would, in my opinion, have produced a different result. Weighing up all the factors mentioned, there is I think sufficient objective indication of genuine efforts at rehabilitation to tip the balance ever so slightly in favour of the applicant that the decision under review should be set aside.
In June 2000 the Minister, acting personally, cancelled SCJD’s visa under section 501(2) of the Act (GD, p 924). SCJD appealed the decision to the Federal Court of Australia. In March 2003 the Court made an order, by consent, in the Applicant’s favour (GD, p 925).
Late in 2004 SCJD was issued with a notice of intention to consider cancellation of his visa. Further notices were sent to him late in 2005 and in 2006. In response to invitations, the Applicant made representations to the Department and in August 2007 a delegate of the Respondent decided not to exercise the discretion in section 501(2) of the Act to cancel SCJD’s visa. At this time, SCJD was sent a letter (GD, p 919) advising him of this decision which, inter alia, stated:
[SCJD] should be advised that while his offences up to 2001 are considered by the government to be very serious and would normally warrant cancellation of his visa his behaviour since then weighs in his favour. He should think of his child and family and he should be warned that if he repeats his earlier pattern of behaviour and offends again he may not be so fortunate.
Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.
OFFENDING HISTORY

Apart from the convictions made by the Court in May 2016 referred to above, the National Police Certificate dated 1 December 2017 records fourteen other appearances by SCJD before Australian courts.
In March 1983 he appeared at a Victorian Children’s Court in relation to six charges of theft and was given a 52-week supervision order.
In March 1988 he appeared at Cootamundra Local Court and was convicted of unlawfully using a conveyance and was fined $200.
In October 1988 SCJD was convicted at the Victorian Magistrates’ Court of the offence of assault by kicking and was fined $600. On the same day he was also convicted of resisting police or person assisting police and was fined $400.
In 1990 the Applicant was convicted at the Magistrates’ Court of the offence of intentionally or recklessly causing injury and sentenced to three months’ imprisonment, wholly suspended for twelve months.
In 1991 SCJD was convicted by the County Court of Victoria of the offence of possess heroin and was sentenced to 18 months’ imprisonment.
In 1992 the Applicant was before the Magistrates’ Court and convicted of being a person in a common gaming house and was fined $100.
In 1993 at the Magistrates’ Court SCJD was convicted of the offence of possess firearm whilst a prohibited person, and sentenced to four months’ imprisonment, the sentence wholly suspended for 24 months.
In December 1995 at the Magistrates’ Court, SCJD was convicted of the offence of possess heroin and use heroin and was fined an aggregate of $500.
In March 1997 the Applicant was convicted at the County Court of the offence of traffic other drug of dependence. He was sentenced to fifteen months’ imprisonment, with the sentenced suspended for two years.
Two months later, before the same Court, SCJD was convicted of the offences of traffic heroin, for which he was sentenced to 36 months’ imprisonment. He was also convicted of the offence of attempt to traffic other drug of dependence, and sentenced to 24 months’ imprisonment, 15 months of which was to be served concurrently.
In 2003, again at the County Court, SCJD was convicted of the offence of traffic heroin, and sentenced to 42 months’ imprisonment. He was also convicted of the offences of possess amphetamine and possess heroin, and on each count sentenced to three months’ imprisonment, to be served concurrently. That day, the Applicant was further convicted of the offence of failing to answer bail granted and sentenced to one-month imprisonment.
The facts in relation to the 2003 convictions were that late in 2001 police executed a search warrant on a house in a Melbourne suburb. SCJD was located nearby in possession of two bags containing small amounts of heroin and methylamphetamine (‘ice’). The police obtained a search warrant for a house in which SCJD and his then wife resided. At the house, a set of scales, 35.4 grams of ice, 44.9 grams of heroin, a coffee grinder with white powder residue and a commercial heroin press were discovered.
In 2004 SCJD appeared at the County Court and was convicted of the offence of traffic amphetamine, for which he was sentenced to 18 months’ imprisonment. He was also convicted of the offence of possessing heroin, and sentenced to 12 months’ imprisonment, to be served concurrently.
In January 2015 the police executed a warrant relating to a house in which SCJD lived with his mother. A plastic bag was found in the Applicant’s jacket containing just over 15 grams of ‘ice’. Several other items were found at the house and seized, including a Winchester rifle located behind a kickboard under a kitchen bench wrapped in a towel. Hidden in a wall cavity behind a refrigerator at the house were found the following items: a home-made handgun; a Derringer pistol; a Stirling 12-gauge shotgun; ammunition; and a bulletproof vest. In the lounge room was found a Samurai sword. Also located at the house was drug paraphernalia and a sum of cash. A car outside the house was also searched, and a bag containing almost 248 grams of ‘ice’ was found under the car’s bonnet. Also found in the car was a notebook apparently recording drug transactions. SCJD subsequently pleaded guilty to a range of offences, to which he was sentenced in May 2016 and which are referred to above.
Not encompassed by the period of the National Police Certificate, but before the Tribunal (GD, pp 1083-1095) were the sentencing remarks of a Judge of the County Court in March 2018, when Her Honour formally convicted SCJD of the offence of riot, to which he had pleaded guilty. The offence occurred when the Applicant was a prisoner at the Metropolitan Remand Centre, Ravenhall, in June 2015. The riot was extensive. The sentencing judge stated (GD, p 1088):
I accept that you were not engaged in planning or organisation of the riot, nor were you directing others what to do, but you were, in my view, from an early stage, as I have previously described you, as an enthusiastic participant. You were actively involved over three and a half hours approximately. You breached fences, entered the CMC, you were at all stages disguised, you wore rubber gloves to try to avoid detection, you used stolen BA equipment to prevent tear gas from [being effective], you assisted in breaking rocks which were later thrown at guards by others, but most significantly, you damaged seven security cameras and attempted to damage another one with the clear intention of inhibiting the ability of authorities to investigate serious criminal offending by you and others. You intended to participate in a riot, you were not simply a follower. You were intent of causing destruction and alarm and you are to be sentenced on that basis.
In relation to this conviction, SCJD was sentenced to a term of imprisonment of 18 months, nine months of which was to be served cumulatively upon the sentence he was already serving.
EVIDENCE
The Applicant did not give evidence at the hearing. His counsel submitted that he adopts all that he said before the previous hearing of the Tribunal, the transcript of proceedings of which was accepted into evidence.
Oral evidence of Applicant at previous hearing
SCJD gave evidence at the previous hearing through a Vietnamese interpreter, though he responded to the Tribunal in a mixture of English and Vietnamese. SCJD said that he has, in his words, ‘middle’ ability in the Vietnamese language.
He told the Tribunal that he is tested nearly every day for drugs in prison and admitted testing positive in October 2018 for buprenorphine. SCJD said he was not prescribed that drug but was depressed and worried, which is why he took it. He admitted that he had taken illegal drugs in prison, on one occasion ‘ice’ and on other occasions buprenorphine. He thought he took ice around July 2017. He said he stopped taking these illicit drugs because he felt he had too much to lose.
When asked about a container of white powder found in his cell, SCJD said it was not his. When asked about an incident where he was being asked to provide a urine sample and the prison officer reported he urinated on the floor of the cell, SCJD said he did not. SCJD admitted providing an adulterated urine sample.
SCJD told the Tribunal about various medical problems of his (now late) grandmother in the lead up to his arrest in January 2015, which led to her hospitalisation in December 2014. He also gave evidence about the health of his parents, both his mother and father having mobility challenges and having to walk with a stick.
In terms of his criminal history, SCJD agreed with his counsel that his criminal history was very serious and, if he could turn back time, he would have not got involved in such incidents.
SCJD was asked about his arrest in 2015 when drugs and firearms were found at his house. He said that the property found belonged to others who had lived in the house and who had left it, after failing to pay rent. SCJD said when the police discovered the items “I have to take responsibility for it.”
SCJD was asked about returning to Vietnam in 2010. He said at that time he was experiencing back pain and was using a wheelchair. He said a friend told him of a doctor in Vietnam and his friend took him there so that this doctor could perform acupuncture. He said it did not fix his back problem. SCJD said that his back pain was the only reason he went back to Vietnam and that he was now scared of being sent back there because he did not know anyone there and because of how the Vietnamese authorities treat drug addicts. SCJD said he believed that the Vietnamese authorities put drug addicts in gaol or punish them in other ways or ‘shoot them’.
SCJD was asked about his son, ‘XS’, who was born in December 2001. He said that when he was released from gaol in 2005, he had attempted to make arrangements with his ex-wife to see his son, and had obtained a Court order, but in spite of the order she refused to allow him access. He confirmed to the Tribunal in response to a direct question that he had not seen XS for 17 years (at that time), but then clarified to say he was once allowed to hold him by his mother when their son was aged around three or four.
SCJD was asked by his counsel whether he had been given other chances before, in relation to the cancellation of his visa. The Applicant agreed that he has had two previous occasions where his visa was cancelled. Mr Guo put to SCJD that he had made promises about getting off drugs and not committing more crimes and asked what was different now. SCJD said he was older now, and wanted to be with his son, and ‘all my family if I could’.
Under cross-examination from Ms Nyabally, at the previous hearing, SCJD said he had one brother and four sisters, one of whom (a sister) went missing in sinister circumstances and whose fate remains unknown. SCJD said that they had travelled by boat to Malaysia and then an uncle had sponsored the family to come to Australia. His parents still live in Victoria. His parents separated and his mother now lives with her new partner; his father lives by himself. SCJD agreed that he has had issues with alcohol and using drugs in the past; he told the Tribunal that he first used marijuana in 1990 or 1991 and then started using heroin. He said he also started dealing in heroin to support his habit.
He agreed that he first used cannabis in gaol and then his dealer suggested he use heroin. SCJD was taken to his record of offending and asked about a 1990 appearance at the Magistrates’ Court. He said that the conviction for assault came after he had an argument in a car park when he found he could not get his car out, and ‘slapped’ the person. The Applicant told the Tribunal he was not affected by drugs at the time.
SCJD was asked about a 1991 conviction for possessing heroin. SCJD said he had held the drugs for the purposes of trafficking, and the Tribunal noted that was a finding of a Judge of the County Court in July 1991.
In respect of the 1993 convictions for using a drug of dependence and firearms offences, SCJD said he was using drugs at the time and agreed he was convicted of gun charges, stating that ‘someone’ had given him the guns to keep, and he was ‘young and stupid’ at the time and using cannabis and heroin.
SCJD was taken to a 1997 conviction by the County Court where he was sentenced to 15 months’ imprisonment, wholly suspended for two years on condition that he undergo treatment at Odyssey House, and that he was back before the courts two months later.
Ms Nyabally quoted from a previous Tribunal decision which referred to a conviction for trafficking heroin between 15 December 1995 and 1 January 1996. This involved the sale of heroin to undercover police officers in three transactions for a total of $29,600, and a second 1996 conviction relating to attempted trafficking in hashish when SCJD was arrested after paying three undercover police officers $43,500 for what he believed was five kilograms of that drug. When asked how he came by such large sums of cash, SCJD said he was a ‘middleman’ and was obtaining the drugs for that person. He said at the time in 1995 his drug habit was costing him around $1,000 a day; he was using every day.
In respect of his residency at Odyssey House, SCJD said he spent nine months there and learned how to stop using drugs. SCJD spoke about being released from immigration detention in 1998 in relation to the deportation order made against him, and then about meeting his (now ex-) wife and starting a new life and starting a family with the birth of their son. He said he struggled financially and fell back into using drugs around 2001, just before his son was born in December of that year. He said he re-commenced taking drugs away from the house without his wife or other members of the family being aware.
SCJD agreed that he failed to attend court to answer charges three times and eventually a warrant was issued for his arrest. He said in 2001 he was dealing in ice and heroin, hiding this dealing activity from his family. He agreed that heroin, a coffee grinder with white powder in it and a commercial heroin press were found at the house that he was sharing with his then pregnant wife. He said he pleaded guilty in relation to some drugs which he said had been left in the house by previous occupants because he did not want any repercussions on his wife.
The Applicant agreed that he used ice and heroin in prison in 2004 and was then released on parole. He said he stopped using illicit drugs at that time because he wanted to be with his son, but then found his wife was seeing someone else, and their marriage came to an end.
In respect of the 2015 offending, SCJD said he resumed using ice and started dealing to support his habit. He said he sold both ‘ice’ and heroin in the streets. He said he was dealing from the house owned by his mother. He said he was under stress at the time because his grandmother, who subsequently passed away, had gone into nursing care.
SCJD agreed that he gave a false name when police executed a warrant at the house, because he was scared. He agreed that sums of cash were found at the house. SCJD agreed that when police searched a car, which he said was his mother’s car, they found a bag of methylamphetamine and a notebook with alleged drug transactions. At the house, the police also found a firearms holster which SCJD said was his.
A gun was found in a bag on the floor of the sitting room of the house. SCJD said he “had to say it was mine”; he said he had been living in the house for “a couple of weeks” at that time. SCJD was asked about a Winchester long arm firearm located behind a kickboard under the kitchen bench in the house wrapped in a towel and asked if that firearm was his. SCJD said he could not remember.
SCJD was asked about a loaded black and silver sawn-off shotgun located in a cavity behind the refrigerator in the kitchen and asked if that firearm was his. SCJD said he could not remember. SCJD was asked whether a shotgun cartridge found at the house was his; he responded that he could not remember. SCJD was then asked whether a home-made firearm found in a cavity behind the refrigerator by the police was his. SCJD said he could not remember. When asked about a ballistic vest located in a wall cavity behind the refrigerator in the kitchen and whether it was his, SCJD said he could not remember. In terms of a notebook found in his mother’s car parked outside the house which contained a list of ingredients used in the manufacture of drugs, SCJD said he could not remember whether that was his notebook. In relation to whether he owned a samurai sword found in the lounge room of the house, SCJD said he could not remember.
Ms Nyabally asked the Applicant about the report in relation to his conviction for the offence of Riot in prison whether he broke a surveillance camera, and SCJD said he regretted doing that. Counsel also asked him whether he had misled lawyers when he said (GD, p 81) that he had remained drug-free in prison, but he said he could not remember that.
In reference to SCJD’s statements about wanting to provide support for his parents as they age, Ms Nyabally asked him whether his siblings would also be able to provide any necessary support. SCJD said that as the oldest son, he had a cultural duty in this regard.
Evidence of Dr Annie Cantwell-Bartl
The Tribunal heard expert evidence at the previous hearing from Dr Annie Cantwell-Bartl, a general psychologist, who said she had examined SCJD on two occasions. Dr Cantwell-Bartl said that her considered diagnosis was that SCJD suffered PTSD and a major depressive episode (DSM-IV). Asked about these diagnoses, Dr Cantwell-Bartl said that SCJD experienced four major traumas while at sea coming to Australia, including witnessing the captain of the boat committing suicide. Another traumatic event to which SCJD has been exposed was, in Dr Cantwell-Bartl’s evidence, the murder of SCJD’s sister and the fact that her body has never been found.
The Tribunal asked Dr Cantwell-Bartl whether SCJD disclosed to her that he had used drugs once in the 48 months before she examined him, Dr Cantwell-Bartl said that he had not. She said that where she used the phraseology “used no drugs” the meaning was that the Applicant was not using any illicit drugs and that SCJD did disclose to her that he was using an anti-opiate drug.
Dr Cantwell-Bartl said that it was important that SCJD have ongoing counselling. It was her view that SCJD was authentic in his desire to reconnect with his son and support his elderly parents.
Under cross-examination, Dr Cantwell-Bartl was asked whether she knew that the drugs SCJD was taking had not been prescribed. She said that fact was not clear to her, but it would not change her view. Dr Cantwell-Bartl said she did not use any diagnostic tools to assess SCJD’s risk of recidivism during his two consultations with her.
When asked what her opinion of SCJD’s likely conduct if he did not make use of support and counselling services, Dr Cantwell-Bartl said it was still her view that he would not re-offend but such support would make him less likely to resume using drugs. Dr Cantwell-Bartl said that she was aware in general of SCJD’s offending but did not have a complete criminal history before her.
Evidence of Applicant’s brother
SCJD’s brother gave evidence. He operates his own electrical installation business, and employs three or four others, as work requires. SCJD’s brother said that he would be prepared to employ SCJD on his release, and that the Applicant could also live with him.
Evidence of Applicant’s brother-in-law
SCJD’s brother-in-law also gave evidence. He said that he had previously been a friend of the Applicant before becoming his brother-in-law. It was his view that SCJD was more mature now and consequently would not revert to his previous criminal activity. He said that he was unaware that SCJD had tested positive for drugs whilst incarcerated.
Oral submissions of Applicant
Mr Guo submitted that SCJD’s application is advanced on two key planks – the Applicant’s risk of recidivism and on his rehabilitation. He submitted that there are good prospects that SCJD can keep clean from drugs and that it was the childhood trauma of the Applicant which had led him to drug use in the first place. Counsel said that SCJD had been faced with the trauma of being wrongly accused of murder; the trauma of the disappearance of his sister; and the trauma of the death of his grandmother.
The Applicant has been involved in serious criminality to support his addiction. Mr Guo submitted that SCJD does not display a pathological criminality and was, instead, a response to addiction. He says that SCJD’s circumstances have now changed and that there is a material difference between the submissions made to the previous hearing before the Tribunal. He cited SCJD’s generally good behaviour in prison and that he had abstained from drug use except for one use of ‘ice’ in a period of 57 months. Mr Guo also urged the Tribunal to give weight to Dr Cantwell-Bartl’s professional opinion of the Applicant as appearing genuine and authentic, after her 35 years of assessing drug-affected individuals.

Counsel argued that SCJD has no family members or friends in Vietnam and that his principal language is English, not Vietnamese. Mr Guo reiterated the written submissions and documents tendered before the Tribunal about how he said the Vietnamese Government treats drug users.
In respect of SCJD’s use of buprenorphine, Mr Guo submitted that it is not an illicit drug but that SCJD took it without prescription to avoid taking other, perhaps more harmful, drugs. Mr Guo submitted that SCJD has been tested regularly during his incarceration, for some periods daily, and had only failed one test, which is an objective indicator of his taking personal responsibility for combatting his addiction.
Mr Guo submitted that SCJD has been on methadone treatment in prison since February 2019 with only one refusal of treatment in March 2019. He said that the fact that SCJD has struck ‘rigidly’ to this course of treatment since March 2019 is a comfortable basis for the Tribunal to infer that he has a commitment to continue to adhere when released from custody.
In respect of what may face SCJD if repatriated to Vietnam, Mr Guo submitted that the Applicant would be ‘a drug addict, likely to be destitute and jobless, and would face a high risk of death.’ Mr Gao said that the consequences of the programmes run by the Vietnamese Government are ‘so stark, that even if the Tribunal finds that the Applicant is not reformable, mercy still requires revocation’. Counsel also pointed to SCJD’s hepatitis C diagnosis and what treatment would be available to him in Vietnam for that condition, including the high cost of anti-viral medication.
In reference to journeys that SCJD has made back to Vietnam since he settled in Australia in 1981, Mr Gao said that the Applicant only returned for health reasons, did not go there for employment purposes and only returned for a short period of time.
Oral submissions of the Respondent
The Respondent said it was not in dispute between the parties that the Applicant fails the character test and so the question before the Tribunal is whether there is another reason in terms of section 501CA for the cancellation of the visa to be revoked.
Ms Nyabally responded to submissions by Counsel for SCJD that there is a relationship between the Applicant’s drug-taking and all his offending. She submitted that while such a relationship may explain some of the offending, there was evidence also before the Tribunal of financial gain; there was also evidence of several firearms offences and an assault offence which did not involve drug-taking. Ms Nyabally also referred to SCJD’s involvement in a prison riot and that there was no evidence he was taking drugs when he was involved in this conduct.
Counsel said that the Applicant had shown a past pattern of tending to turn to drugs in times of stress. Ms Nyabally said that the Minister accepts that SCJD comes from a loving and supportive family but noted that they had been unable to stop the Applicant’s pattern of drug use and criminal behaviour.
Ms Nyabally submitted that the only probative evidence before the Tribunal of SCJD’s compliance with methadone treatment was for a period of seven months and this was too short a period for the Tribunal to be satisfied that he will not re-offend.
The Respondent further submitted that given SCJD returned to Vietnam in 2010, he no longer fears harm, because he stayed there for three weeks without any apparent difficulties.
In terms of impediments SCJD may face, Ms Nyabally drew the Tribunal’s attention to the DFAT Country Information Report on Vietnam which states that detention is no longer compulsory for drug addicts in that country. She said that the Respondent accepts that the fact that SCJD has hepatitis C may contribute to difficulties he would face without family support.
In terms of SCJD’s minor son, the Respondent submitted that little weight should be placed on this primary consideration in this case because the Applicant had not had contact with his child since 2005.
Ms Nyabally referred to paragraph 6.3 of the Direction which requires a decision-maker to take into account whether a person has a long history of disrespecting Australian law, which she said SCJD objectively has displayed. She referred to the 1990 ‘road rage’ incident which SCJD described as occurring when he ‘slapped’ a motorist, but submitted that description seemed to underplay the facts, given the severity of the penalty imposed.
Ms Nyabally referred to the 1998 decision of the Tribunal which gave SCJD the opportunity to turn his life around. She noted he got married, obtained employment and started a family. However, after a short period he reverted to drug-taking, which, on his own evidence, he hid from his wife.
Ms Nyabally submitted that no protection obligations are owed to SCJD and that this was the assessment made in 2007 (GD, pp 126-130). Ms Nyabally said that the Respondent concedes, because of the length of time he has resided in Australia and his family members here, that SCJD has significant ties with this country.
CONSIDERATION OF THE DIRECTION
Primary considerations
Protection of the Australian community (paragraph 13.1)
The nature and seriousness of the non-citizen’s conduct to date (paragraph 13.1.1)
This part of the Direction requires the Tribunal to take into account certain principles, including that violent and/or sexual crimes are to be viewed very seriously (paragraph 13.1.1(1)(a)), and that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed (paragraph 13.1.1(1)(b)). At paragraph 13.1.1.(1)(c) crimes against vulnerable members of the community or government representatives or officials in the performance of their duties are serious.
The Direction also requires the Tribunal to take into account the sentences imposed by the courts for a crime or crimes (paragraph 13.1.1(1)(d)), the frequency of a person’s offending and whether there is any trend of increased seriousness (paragraph 13.1.1(1)(e)) and the cumulative effect of repeated offending (paragraph 13.1.1(1)(f)).
SCJD has a substantial criminal history, first appearing before the Courts in March 1983 on six charges of theft. He has appeared before the Courts on fourteen subsequent occasions spanning 30 years. There have been convictions for crimes against the person, including some violent crimes, but they are limited to convictions in 1988 and 1990 and subsequent convictions have almost exclusively related to drug possession, drug trafficking and firearms offences. As mentioned above, there is one conviction in relating to a prison riot in which SCJD participated.
There has been a relative frequency in SCJD’s offending, but there have also been periods where he has no convictions recorded, notably between 1997 and 2003 and between 2004 and 2015. I do not conclude that there has been a trend of increased seriousness, but there has been a cumulative effect of repeat offending. A worrying trend in SCJD’s criminal behaviour has been his several convictions for trafficking in illicit drugs, notably heroin, and the Courts have progressively increased the seriousness of the punitive sanctions applied from suspended sentences to relatively substantial sentences of imprisonment, which is something the Direction requires decision-makers (paragraph 13.1.1(1)(d)) to take into account.
Notably, the Direction states, at paragraph 13.1.1(1)(h) that a factor that the Tribunal must have regard for is whether SCJD has re-offended since being formally warned, or since otherwise being made aware in writing of the consequences of further offending in terms of his migration status. Counsel for SCJD rightly conceded that he has had his visa cancelled on two previous occasions, and the visa has been restored to him, and consideration of cancellation of his visa on a third occasion, where he made several representations against the proposed cancellation, which were ultimately successful. That is a significant factor, because it illustrates to the Tribunal that, in spite of being well aware of the jeopardy to his migration status if he continued to offend, and in spite of being aware of direct exhortations to him, both in previous Tribunal proceedings and in writing, that he would face visa cancellation if his offending did not cease, SCJD continued to re-offend, and to commit serious crimes.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)
The Tribunal must assess the nature of harm to individuals or the Australian community should a non-citizen engage in further criminal or other serious conduct, and the likelihood of the person engaging in further conduct of that kind, taking into account the evidence on the risk of re-offending.
As mentioned above, Dr Annie Cantwell-Bartl, psychologist, interviewed SCJD on two occasions in September 2018 by telephone to provide a report and assessment, as requested by his lawyers. She conducted a Mental State Assessment, a K10 Depression Scale and a PCL-C Traumatic Stress Scale.
In respect of SCJD’s mental state assessment, Dr Cantwell-Bartl reported that his mental functioning and overall manner was within the norm. She said:
He seemed to have average insight but did not want to think about the possibility of being sent to Vietnam, as it was too painful for him. His judgement presented as average. He was appropriate in his responses. His mood and affect reflected a man struggling with depression and trauma.
In terms of depression, Dr Cantwell-Bartl reported that SCJD has a depressed mood:
His self-esteem is low and his level of guilt and self-hatred is high. He struggles with concentration and his symptoms impact on his general functioning. He uses no drugs. [SCJD] has had limited opportunities for assistance. The disturbance he feels does not occur during the course of a chronic psychotic disorder and are [sic] not due to a direct physiological effect or of a substance, or a general medical condition that I can ascertain. The symptoms have caused clinically significant distress and cause impairment in his social, and occupational life.
I also tested [SCJD] on the K10 scale and he had a positive result (Test Score 35), indicating that he is likely to have Major Depression.
Dr Cantwell-Bartl reported that she conducted a PCL-C Traumatic Stress Scale test to assess whether SCJD had traumatic stress symptoms. She identified two major traumatic events in his life, the first being when as a young boy he witnessed the captain of his boat jump into the sea (on the voyage between Vietnam and Malaysia) and refuse to be rescued. The second event was the disappearance and likely murder of his sister. Dr Cantwell-Bartl recorded that SCJD scored 56 on the assessment test, where a cut-off score of 50 is clinically significant. Dr Cantwell-Bartl said this means that SCJD has ‘a diagnosable Post Traumatic Stress Disorder (PTSD). This test was confirmed by clinical assessment and [SCJD] had all three symptoms of traumatic stress: arousal (intrusive thoughts), hyper-vigilance and numbness.’
Under the heading ‘Risk of recidivism’, Dr Cantwell-Bartl recorded that SCJD told her ‘he will not use drugs again as he is aware that drugs will only get him into trouble.’ She went on to report:
It is hard to know whether he is at risk again of recidivism. I believe that if he [is] given this chance of staying in Australia that because he is committed to his family, he has a good chance of not offending again, particularly if he seeks psychological support, ongoing counselling, long term psychotherapy (possibly the possibility of group psychotherapy) and any other relevant support.
As mentioned above, Dr Cantwell-Bartl gave oral evidence that she did not use any assessment tools in relation to SCJD’s risk of re-offending. She noted in her report, her expertise as a general psychologist is in trauma counselling, and it is natural that she concentrated upon that in her assessment of SCJD’s general presentation.
As is required by the Tribunal President’s guidelines in relation expert evidence, SCJD’s solicitors sent Dr Cantwell-Bartl a letter of instruction dated 11 September 2018, which she appended to her report. The letter of instruction refers to SCJD having a heroin and cannabis addiction and having a 1991 conviction for possession of heroin leading to his first term of imprisonment. The letter refers to SCJD being in remand in relation to murder charges (which were dismissed and form no part of the Tribunal’s consideration in this matter), and to other terms of imprisonment and ‘further drug offences’ and ‘weapons related offences’, theft, failure to answer bail and assault. The letter informs Dr Cantwell-Bartl that the ‘overwhelming majority of the Applicant’s offences have been drug related’.
It is a matter of concern to the Tribunal that Dr Cantwell-Bartl was not provided with full details of SCJD’s offending history, and instead was given this partial summary. While the summary is not inaccurate, it is far from complete and has no reference to SCJD’s convictions for drug trafficking. Whilst the trafficking charges are undoubtedly ‘drug related’ it would have been preferable, given the task SCJD’s lawyers were asking of Dr Cantwell-Bartl, had she been given the complete picture. I believe this could have increased the value of this psychological report because it would have led to the psychologist discussing the trafficking convictions with the Applicant, including what might have been the motivations behind him being involved in trafficking, whether it was to provide funds to support his addiction or something more. It is the Tribunal’s view that the complete offending history should have been provided.
A consequence of the lacunae in the information given to Dr Cantwell-Bartl is that they affect the weight the Tribunal gives to her assessment of the likelihood of re-offending. Also affecting that weight is Dr Cantwell-Bartl’s own evidence that she did not deploy any of the assessment tools for assessment of re-offending that psychologists commonly use. Dr Cantwell-Bartl’s view of whether or not SCJD would offend again is based principally on her assessment that past trauma has affected his conduct, and continues to, and if this is properly addressed, she ‘believes’, as she emphasised to the Tribunal, that he will not re-offend.
Dr Cantwell-Bartl makes the plain statement, when giving her clinical assessment of SCJD, that ‘he uses no drugs’. This has been shown to be more a reporting of what the Applicant told her, because the admitted facts are that he did continue to use drugs in prison, ‘ice’ on one occasion and buprenorphine on others and provided an adulterated urine sample.
In assessing the level of risk to the Australian community if SCJD re-offends, the Tribunal re-states that it does not serve a penal function in this matter. SCJD has been punished by the judicial system where he has been convicted of offences. In this part of the Direction, the Tribunal focusses on the likelihood of the Applicant re-offending if allowed to remain in Australia, in the context of risk to the Australian community.
In this respect, the lack of candour of SCJD in his responses to questions about the firearms and drug paraphernalia found at his residence are of significance. The Tribunal noted that in a series of questions put to him, the Applicant provided identical answers that he ‘can’t remember’ in response to eight questions asking why specific firearms and firearm accessories such as cartridges and a ballistic vest were found in various places at his house, including secreted away, and he denied knowledge of a firearm that police found in a bag on the floor of the sitting room. Having stated that the car outside the residence was his mother’s, SCJD then said he did not know why a notebook was in that car relating to the ingredients for drug making. He said he pleaded guilty to the various charges that arose from these items being found because he was the “only one in the house”.
The Applicant was taken to a submission made by his solicitors to the Department in February 2018 (GD, p 81) which stated:
Most importantly, [SCJD] has remained drug free since returning to prison. This is a testament to his determination to leave his criminal past behind him. [SCJD] recognises that drugs are freely available in prison, but has resisted the temptation to use them.
Given that SCJD had acknowledged using ‘ice’ in prison, providing an adulterated urine sample and using buprenorphine in prison (which was not prescribed for him), the Applicant was asked why he was not truthful to his solicitors, leading them to make this submission. SCJD said he “couldn’t remember”.
This lack of frankness, several years later, inclines the Tribunal to the conclusion that SCJD is still prepared to be evasive and to minimise his offending history, and not to be candid about his drug usage in prison. Accepting that the drug use of SCJD in prison is not of the worst kind and that it is probable he could have obtained harder and more illicit drugs, this minimisation of his conduct, especially in regard to the firearms offences of which he had previously pleaded guilty, inclines the Tribunal to the view that there is a real risk of the Applicant re-offending, and a risk that is not negligible.
The Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa.
Best interests of minor children in Australia affected by the decision (paragraph 13.2)
The Tribunal must make a determination about whether revocation is in the best interests of relevant children. The Direction states that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their best interests may differ.
SCJD has a son, who I will call XS, born in December 2001. He is therefore now aged 20 and not a minor. The Direction states, at paragraph 13.2(2): This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not to revoke the mandatory cancellation decision is expected to be made.
The Applicant’s brother made remarks about his minor children (GD, p 1138) but the Tribunal finds that the information is insufficient for a determination on the best interests of these children and will consider them later in these reasons.
The Tribunal finds that this consideration is not applicable, in the terms of this part of the Direction and so weighs neutrally in this consideration.
The Tribunal will consider the matter of the Applicant’s son later in these reasons, when evaluating the strength, nature and duration of ties SCJD has with Australia.
Expectations of the Australian community (paragraph 13.3)
The first part of this part of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Full Federal Court considered this part of an earlier version of the Direction in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR). The wording in the earlier version of the Direction was relevantly the same. In that matter, two of the three judges (Charlesworth and Stewart JJ) held, in separate judgements, that this part of the Direction expresses a ‘norm.’
The Court decided that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed – they are what the executive government has declared are its views, not presumptions or assessments that a decision-maker may derive by some other evaluative process.

Stewart J stated, at [100]-[101]:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
(i)non-citizens will obey Australian laws when in Australia;
(ii)it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
(iii)in a particular case, the refusal of the visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”
(Emphasis added.)
His Honour later said (at [102]) that ‘the character assessment, even through the prism of community expectations, may not be decisively against the applicant’, which is why the decision-maker must assess what is ‘appropriate’ in the particular circumstances.
Charlesworth J set out different reasoning in Her Honour’s judgment at [68]-[74]:
The content of the expectation
It is necessary to give content to the deemed expectation of the Australian community in a way that is capable of being afforded weight as a primary consideration in a particular case. In the particular case, the Australian community will either expect the visa to be refused, or it will not. In light of what is said above, the present enquiry does not concern what the Australian community expects in fact (assuming such expectations could be objectively ascertained), but rather concerns what the government has deemed the community’s expectations to be. The content of the deemed expectation is to be discerned by construing cl. 11.3 itself.
The clause expresses two expectations, the first concerning norms of conduct to be expected of non-citizens, as expressed in the opening sentence:
The Australian community expects non-citizens to obey Australian laws while in Australia.
This statement is a reflection of the rule of law as it applies to citizens and non-citizens alike. It is an expectation that will not have been met in respect of a visa applicant who cannot pass the character test in s 501(6) of the Act and so must, of its nature, weigh against the refusal of a visa in all cases to which the Direction applies.
The second expectation is more difficult to interpret. It is expressed in the second and third sentences of the clause as follows:
Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.
This part of the clause is concerned with the consequences that should befall a non-citizen who has fallen foul of the first expectation. It should be understood as expressing an expectation about the outcome of the exercise of the power conferred by s 501(1) of the Act in respect of the particular person whose circumstances are under consideration.
Before proceeding further it must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl. 11.3 of the Direction. The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
I have accepted the Minister’s submission that cl. 11.3 is intended to give effect to the principle that the Minister may make a statement of the government’s views about the expectations of the Australian community, which statement may be acted on by the person conferred with the power in a particular case, as recognised in Uelese. In my view, the task of the decision-maker is to identify what is the ‘government’s view’ about community expectations in the particular case, to ‘have due regard’ to that view and to ‘generally’ afford that view more weight than other non-primary considerations in accordance with cl. 8(4). The phrase ‘may be appropriate’ does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl. 11.3) with the decision-maker’s own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl. 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to ‘other considerations’ in the exercise of the discretion, as cl 8(4) of the Direction generally requires. The primary judge was correct to say that importing into cl. 11.3 all countervailing factors bearing on the ultimate decision would render cl. 8(4) of the Direction unworkable.
On 24 April 2020 when the High Court of Australia refused an application for special leave in relation to FYBR, Kiefel CJ stated, for the Court, that there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.
In the Tribunal’s assessment, because SCJD has committed a large number of offences, and most specifically a number of offences relating to the commercial trafficking of serious drugs of addiction, the Australian community, in the context of that entity as expressed in 13.3 of the Direction, would not expect him to hold a visa to remain in Australia. I find that SCJD has failed to meet the expectation that he obeys the laws of Australia while in this country, an expectation – indeed an obligation – that, as Her Honour remarked above, applies equally to citizens and non-citizens.
Over the period from 1983 to 2016, SCJD has been before the Courts on some 14 occasions. Apart from five trafficking convictions, he has convictions as set out earlier in these reasons for assault, for a large number of firearms offences, for theft, for resisting police, and for failing to answer bail. Because of this sustained pattern of criminality, the Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa.
Other considerations
International non-refoulement obligations (paragraph 14.1)
This consideration requires a decision-maker to consider whether any of Australia’s international treaty obligations may be agitated in a particular case. In particular, will the Applicant suffer significant harm if the mandatory cancellation of his visa is not revoked, and he is returned to his country of citizenship.
The solicitors for the Applicant submitted that SCJD fears harm in Vietnam based on his status as a refugee who departed the country illegally and as a former drug user. His representatives submitted that he will ‘face punishment from the Vietnamese authorities for his drug use’. They also submitted that the Applicant ‘will face mistreatment, ostracization and harm’ from the authorities in Vietnam. SCJD’s solicitors further submitted that he fears return to Vietnam because of his status as a person with Hepatitis C and because of access to treatment for that condition in Vietnam. In addition, his representatives submitted that the Applicant’s ‘status as a returnee with no family and government support makes relocation to Vietnam impossible.’
Before the Tribunal (GD, pp 72-73) were movement records provided by the Department. They indicate that SCJD has travelled out of Australia between April and May 1989 for a period of 41 days; between January and February 1990 for a period of 25 days; and between June and July 2010 for a period of 74 days. It would appear from the submissions of SCJD’s solicitors that each of these trips was to Vietnam, because they refer in their Statement to him ‘returning to Vietnam on several occasions, albeit for short term visits.’
Before the Tribunal was a statement of SCJD written on 8 July 2010 referring to the reason why he was then in Vietnam. He stated that he was having back trouble and difficulty with his legs and had gone to Vietnam for treatment because ‘it is very cheap’. The Applicant refers to having three weeks of treatment and that, having had difficulty walking and having to resort to using a wheelchair before his journey, he could now walk around without needing to use a walking stick.
In his oral evidence at the previous hearing, SCJD said that the primary purpose of his journey to Vietnam in 2010 was for acupuncture treatment. When asked directly why he was scared about going back to Vietnam, SCJD said he did not know anyone there. He also said he was concerned about treatment for drug addicts because they ‘send them to gaol and shoot them’.
There is scant evidence to support the written submissions on behalf of the Applicant that he would face ‘harm’ if repatriated from the Vietnamese authorities. While there were a number of press articles submitted relating to the historical treatment of drug offenders in Vietnam which undoubtedly paint a picture that there was a severe regime in place, there is evidence before the Tribunal that that situation has changed. The most authoritative evidence of this change is contained in the DFAT Country Information Report Vietnam dated June 2017 (GD, pp 868-893). This document is prepared by the Department of Foreign Affairs and Trade for ‘protection status determination only’ (see GD, p 871) and is relevant to the Tribunal’s assessment as to whether non-refoulement claims are engaged in relation to SCJD’s application.
The Country Information Report Vietnam states, at paragraph 4.12 (GD, p 888):
Around 35,000 drug users are detained in administrative centres, referred to as ‘Treatment, Education and Social Labour Centres’ (also known as ’06 Centres’), without charge and with limited judicial involvement. Drug users reportedly spend an average one to two years in these centres; however, detention is no longer compulsory if an individual is registered on a methadone program. Credible reports indicate harsh conditions and mistreatment of detainees at these centres, including forced labour and physical abuse. The centres are often reported to be profitable for those managing them due to the forced labour practices.
Given that SCJD has commenced a methadone program and has proof of his regular participation in it, which was before the Tribunal, it would appear that he would not be subject to detention, provided he registered for methadone maintenance treatment if repatriated. There was nothing before the Tribunal to support SCJD’s claim that people are ‘shot’ if they have taken drugs in the past.
The Tribunal notes that SCJD also claims that he may receive adverse attention from the Vietnamese authorities because of the manner he left the country in 1980 and for the fact that his father was a soldier in the army of the former Republic of Vietnam. In respect of the first contention, it would not appear that SCJD has been impeded in being issued with Vietnamese travel documents nor in freely entering and freely leaving Vietnam on each of the three occasions on which he has travelled there from Australia.
It also does not seem that his father’s former military service, more than 40 years ago, has been an impediment to SCJD in his several visits to the country, nor has it led to any attention from the Vietnamese Government. It was submitted to the Tribunal that relatively short-term visits by the Applicant to Vietnam are different from him returning there to live permanently, but there was little elaboration on this assertion and why it would be substantially different.
The Applicant’s submissions about his hepatitis C condition will be considered later in these reasons.
The Tribunal notes that the visa held by SCJD, which has been cancelled, is not a protection visa, and that SCJD has never been refused a protection visa, nor has he held such a visa (he originally came to Australia on a refugee visa). It is relevant that the Applicant may make a valid application for a protection visa, where he may make more substantive claims that he is owed international protection by Australia.
On 6 September 2017 the Immigration Minister made a direction under section 499 of the Act, Direction No. 75. Relevantly, Direction No. 75 states, in Part 2:
In considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out below.
The decision-maker must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns.
[…]
(Emphasis added.)
It is open to SCJD to apply for a protection visa. If he chooses so to do, he would have the opportunity to expand upon any claims relating to his own circumstances that might invoke Australia’s non-refoulement obligations. I am also satisfied because of Direction No. 75, and section 499(2A) of the Act, that a decision-maker in relation to such an application is directed by the Respondent to carefully assess those claims, before looking to any character concerns.
The Tribunal is not satisfied on the evidence before it that SCJD has a well-founded fear of being persecuted if repatriated based on his race, religion, nationality, membership of a particular group, or political opinion. There is also insufficient evidence of an existence of a ‘real risk’ in the sense of that term in section 36(2A) of the Act if SCJD returns to Vietnam permanently, in the sense of denial of medical treatment or discrimination because of his past drug addiction which he submits has substantially diminished now he is on a methadone course. That particular matter will be discussed later in these reasons.
The Tribunal finds that none of the contentions made rise to the level of invoking Australia’s convention obligations not to return a person to a country where they will be exposed to potential harm, and so this consideration weighs neutrally in this assessment. Where the contentions may contribute to whether there is ‘another reason’ to revoke the mandatory cancellation of the visa will be dealt with elsewhere, consistent with authority (Minister for Home Affairs v Omar [2019] FCAFC 188, at [39]).
Strength, nature and duration of ties (paragraph 14.2)
This part of the Direction requires the Tribunal to have regard for how long a non-citizen has resided in Australia, including whether the person arrived as a young child, noting that less weight should be given to ties where the non-citizen began offending soon after arrival and more weight should be given to time the non-citizen has spent contributing positively to the community. The Tribunal must also consider family or social links, and the strength and nature of those, between the Applicant and any of his immediate family who are Australian citizens, permanent residents, or who have an indefinite right to remain in Australia.
Living in Australia are SCJD’s parents, his son XS, and siblings and their children. It would appear that SCJD has no living relatives in Vietnam, or if he has, they are not close relations. The Tribunal had before it statements from family members including SCJD’s mother (GD, p 90) and his younger brother (GD, p 92). SCJD’s brother stated that SCJD’s “family is all here in Australia”.
The Applicant’s brother also wrote (GD, p 1138): ‘My brother knows my wife and my elder children – it would be great from him to spend time with my younger kids who he has not met because he has been in prison.’
The Tribunal accepts there is a genuine desire by SCJD’s brother for the Applicant to get to know his nieces or nephews, but also that the Applicant has never met them.
XS, the Applicant’s son
SCJD told the Tribunal (transcript p 70) that he had last seen his son in 2005. He said he was in gaol when XS was born. His former wife had previously visited him in prison and brought their son with her. On release SCJD said he lived with his former wife and their son for a short period before they separated. SCJD said she took XS with her when she moved back to live with her parents. He said he could not get into contact with her or with his son, so he approached his solicitor and received certain supervised visitation rights. A copy of a Federal Magistrate’s Order in respect of access by SCJD to XS was at GD, pp 98-99. SCJD said he attended a suburban police station where his former wife was to bring XS but told the Tribunal she ignored the court orders and “never [brought] my son to come and see me”.
SCJD said he did consult with his solicitors, but that they said there was little they could do, and he stopped trying to see XS in 2005. There was no evidence before the Tribunal that he made further attempts to contact XS. SCJD told the Tribunal that XS was now old enough to make his own decisions about making contact.
There was no current information before the Tribunal as to whether there were any Court orders still in place at the time of the hearing (and in any event they would expire on XS becoming an adult), and the only information on this is what SCJD told the previous hearing. The Tribunal cannot conclude whether they remained in place before XS turned 18.
The Tribunal considers that SCJD’s desire to make contact with his son is genuine, and accepts his evidence that his former wife brought XS to prison in order to establish a fatherly relationship between the Applicant and his son, given that he was incarcerated when XS was born. However, the passage of time with no contact between them significantly dilutes the weight that would normally apply to considering the relationship between a child and his or her parent, in a case where there is no evidence of any abuse or neglect.
Other matters
The Tribunal had a statement from an officer of the Vietnamese Business Association of Australia Inc. (GD, p 94) in which the writer stated that SCJD had ‘learned his lessons and regrets his crimes’ but it was essentially written about the effect the deportation of SCJD would have on his mother and there was no evidence that the author of the statement had personal knowledge of the Applicant.
The Tribunal had an unsigned statement dated 20 January 2018 from the proprietor of a building business (GD, p 95) in which the author stated that he knew SCJD and his mother for over five years and that the Applicant had worked for him as a handyman. The writer stated that he would train SCJD as an apprentice carpenter and send him to TAFE for further training.
The Tribunal notes that the Applicant’s parents reside in Australia and are getting older, and his mother has suffered from various health conditions. These factors may make it more difficult for them to travel to Vietnam should SCJD be repatriated.
Given that all SCJD’s close relatives reside in Australia, including his now adult son, as well as a network of other friends, and taking into account and the length of time the Applicant has resided in this country, the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa.
Impact on Australian business interests (paragraph 14.3)
This part of the Direction requires the Tribunal to consider the impact on Australian business interests if a particular non-citizen’s visa is cancelled, but that an employment link would generally only be given weight where visa cancellation would significantly compromise the delivery of a major project or important service in Australia.

There was evidence before the Tribunal of SCJD being employed briefly as a handyman and a waiter, and undertaking some other short-term work including for his mother’s business, but I do not find this employment evidence rises to the level which would engage this consideration.
The Tribunal finds this consideration is not engaged in this assessment, and therefore weighs neutrally.
Impact on victims (paragraph 14.4)
The way this part of the Direction is couched means that this consideration is only relevant where a victim of a non-citizen’s criminal offending is aware of a decision to cancel the person’s visa.
The Applicant’s counsel rightly conceded that trafficking in drugs is not a ‘victimless’ crime, because of the effect it has on society and contributing to other criminal offending by dealers and addicts, the latter in order to fund their habit. However, there was no specific evidence before the Tribunal from a person who was aware of SCJD’s migration status and so the Tribunal finds that this consideration weighs neutrally.
Extent of impediments if removed (paragraph 14.5)
The Direction sets out that the Tribunal must consider the extent of any impediments that a non-citizen may face if removed from Australia to his or her home country, in this case, Vietnam, in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of that country. The Direction provides that the Tribunal should take into account the person’s age and health, any substantial language or cultural barriers, and any social, medical or economic support available to them in the country of reference.
Counsel for the Applicant submitted that SCJD left Vietnam aged 12 and has not resided there since that time, that his understanding of Vietnamese was poor, including his ability to read and write in that language. SCJD himself described his knowledge of Vietnamese as ‘middle’ range and the Tribunal notes he requested a Vietnamese interpreter for the hearing.
In terms of SCJD’s health, the various medical examination reports provided to the Tribunal record that he is in general good health, taking into account that he was prescribed a regular methadone course (GD, p 1378). He has had some health issues which appear to have resolved, including undergoing a colonoscopy. Importantly in terms of the material before the Tribunal is a medical report (GD, p 1352) which records that SCJD was still injecting buprenorphine into his groin veins (in order to hide the needle marks from others) at that time, and he told the medical officer he had last taken ‘bupe’ a few days before the examination.
More importantly is a medical report dated 4 July 2019 (GD, p 1357) which records, in red type, that hepatitis C was not detected. This latest medical information would appear to the Tribunal to indicate a sustained virological response which suggests that SCJD will stay free of the hepatitis C virus indefinitely.
There is a tension in the submissions of the Applicant’s representatives about his status in Vietnam. On the one hand it is submitted that he has largely sloughed off his drug addiction, noting a small amount of illicit drug taking in prison, and using buprenorphine without a prescription for that drug. On the other hand, it is submitted that ‘as a drug addict’ SCJD would face hardship, or even harm, in Vietnam, as voiced by him in his own oral evidence.
The Respondent drew the Tribunal’s attention to an article in the International Journal of Drug Policy written in 2017 (SGD, p 1239) which refers to pressure from international donors on the Vietnamese Government from 2011 on to ‘shift away from the compulsory centres approach’, i.e. the 06 Centres where drug offenders were detained, and international funding for such centres was withdrawn. Relevantly, this article records improvements in the methadone maintenance treatment (MMT) regime operating in Vietnam (SGD, p 1241):
Specific changes to drug policy legislation was not observed during our research or after its dissemination (from 2015). What has been observed is the increase in government funding for the expansion of the MMT program from 60 clinics in 20 provinces/cities for 12,253 patients in 2012 (the start of the study) to 216 clinics in 54 provinces as of March 2016 for 44,479 patients. By December 2016, the number increased to 257 clinics…in all 63 provinces with 50,667 patients in treatment. The investment in the MMT program from the national government has increased from approximately US$150,000 in 2014 to US$1,500,000 in 2016. The government has invested in facilities, salaries of key staff and partial running cost [sic] for MMT clinics in the province, paving the way for a sustainable program. Vis a new Decree #90 in 2016 (Government of Vietnam, 2016), the national government has committed to allocate resources to fill all possible gaps created by international donors pulling out of the MMT program.
It would seem to the Tribunal that there is sufficient evidence that the Vietnamese Government has not only moved away from compulsory detention, but has also recognised the value of supporting methadone clinics, mirroring the international response to helping former drug addicts defeat their previous habit and move to a ‘clean’ life. There is also ample evidence (SGD, p 1361 to 1396) of SCJD’s full engagement in methadone treatment.
The Tribunal finds that this consideration weighs slightly in favour of revoking the mandatory cancellation of the visa, principally because there is some evidence that SCJD is not fluent in Vietnamese, and has difficulty writing and reading that language.
CONCLUSION
The Tribunal has found that two of the primary considerations weigh against the Applicant. The other primary consideration, the best interests of minor children affected by the decision, has been found to weigh neutrally. Of the other considerations in the Direction, the consideration relating to international non-refoulement obligations weighs neutrally, noting he has further options in that regard. The considerations relating to strength of ties with Australia and the extent of impediments if removed weigh in his favour, the latter consideration weighing slightly. The remaining considerations are not engaged and weigh neutrally in this balancing exercise.
The Tribunal accepts that the circumstances of SCJD’s early life in leaving Vietnam for Malaysia by boat were traumatic, and that these early experiences have had an effect on him which has endured and have had a psychological impact. Whether that contributed to his taking up a drug habit is not something that the Tribunal can determine. It has been submitted by Counsel for the Applicant that his trafficking activities can be ascribed solely to supporting his drug habit. While it may have been an element, the Tribunal cannot accept there was not a significant commercial element in significant trafficking activity. This view is bolstered by the lack of any explanation about the large number of firearms found at SCJD’s residence, and his lack of candour about a notebook with drug recipe details found in his mother’s car outside, as well as other drug-making apparatus.
In respect of the conviction for Riot, this is relevant because it occurred during SCJD’s incarceration and, while he may not have been a principal, he was, in the Judge’s words, ‘an enthusiastic participant’, and happy to damage equipment to allow other rioters protection from being identified. The Tribunal notes that this was in a prison environment and does not place significant weight on this particular conviction in this assessment, except in the context that it was a continuation of criminal conduct.
The Tribunal accepts that SCJD has made efforts to reduce his dependence on illicit drugs, but his conduct in prison supports a level of doubt about how he would fare in the community, and how resistant the Applicant would be to returning to drug use and trafficking. There is a clear difference between a person gripped by drug addiction and committing offences directly connected with that, and a person who engages in substantial trafficking in hard drugs for commercial gain, as SCJD has (noting for example the heroin conviction involving transactions of $29,600 and paying undercover police $43,500 for hashish).
SCJD himself acknowledged that he has been given several chances in terms of his migration status, and that he has failed to reform his criminal conduct. He has been effectively on notice since the first visa cancellation in 1997 to reform his behaviour. That was reiterated by the visa cancellation in 2000, notices from the Department that they were considering cancelling his visa in 2004, 2005 and 2006, all prior to the visa cancellation which is the subject of these proceedings. He has been given many chances, and in spite of short periods where he did not offend, his marriage and the advent of fatherhood, which Deputy President Forrest hoped would have a salutary effect on his criminal behaviour, appeared to have little or no effect.
He is an habitual offender, one involved in the insidious drug trafficking industry and a person who remains unable, even nearing the end of a long prison sentence, to fully acknowledge his criminal offending. The Tribunal therefore concludes that the risk of SCJD reverting to his previous criminal practices is an unacceptable risk, and this weighs heavily against him.
The Tribunal has weighed all the considerations, individually and cumulatively, and considered the particular circumstances of the case, as required by paragraph 6.1(2) of the Direction, in exercising the assessment of whether there is ‘another reason’ for the mandatory cancellation of SCJD’s visa to be set aside. The Tribunal finds that the discretionary power provided for in section 501CA(4)(b)(ii) of the Act is not enlivened in this case. In other words, there is not ‘another reason’ why the mandatory cancellation of the visa should be revoked. The consequence is that the Tribunal finds the decision under review not to revoke the mandatory cancellation of SCJD’s visa was the correct decision in law and the preferable decision where a discretionary power may be exercised.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 178 (one hundred and seventy-eight) paragraphs are a true copy of the decision and reasons for decision herein of Senior Member D. J. Morris

………[sgd]…………………………………
Associate
Dated: 24 December 2020

Date of hearing:

11 September 2019

Advocate for the Applicant:

Mr Min Guo

Solicitors for the Applicant:

Carina Ford Immigration Lawyers

179. Advocate for the Respondent:

Ms Siran Nyabally

180. Solicitors for the Respondent:

The Australian Government Solicitor

[2020] AATA 5214

24 December 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction

Remedies

I certify that the preceding 178 (one hundred and seventy-eight) paragraphs are a true copy of the decision and reasons for decision herein of Senior Member D. J. Morris
………[sgd]………………………………… Associate Dated: 24 December 2020
Date of hearing:		11 September 2019
Advocate for the Applicant:		Mr Min Guo
Solicitors for the Applicant:		Carina Ford Immigration Lawyers
179. Advocate for the Respondent:		Ms Siran Nyabally
180. Solicitors for the Respondent:		The Australian Government Solicitor