SHTD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 91
•6 February 2023
SHTD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 91 (6 February 2023)
Division:GENERAL DIVISION
File Number: 2022/9568
Re:SHTD
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member D. J. Morris
Date:6 February 2023
Place:Melbourne
The Tribunal sets aside the decision dated 9 November 2022 to refuse the Applicant a Partner (Residence)(Class BS)(Subclass 801) visa. In its place, the Tribunal substitutes a decision that the discretion in s 501(1) of the Migration Act 1958 should not be exercised to refuse the visa.
...........................[SGD].............................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant is citizen of Vietnam – applicant refused Partner (Residence)(Class BS) visa on character grounds – application to Tribunal – consideration of whether applicant does not pass character test – applicant found not to pass character test – consideration of ministerial Direction No. 90 – primary considerations – family violence offences – best interests of minor children in Australia – links to Australian community – decision under review set aside and new decision substituted that the discretion to refuse the visa not be exercised.
Legislation
Administrative Appeals Tribunal 1975 (Cth), s 35
Migration Act 1958 (Cth), ss 499, 500, 501Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth), Sch. 1
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Lam and Minister for Immigration and Multicultural Affairs; Re: [1999] AATA 56Maxwell v The Queen [1996] HCA 46; 184 CLR 501
Secondary Materials
Migration Act 1958 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 15 April 2021)
REASONS FOR DECISION
Senior Member D. J. Morris
6 February 2023
Because these reasons contain information about offences committed on a minor child, the Tribunal made an order under s 35 of the Administrative Appeals Tribunal Act 1975 prohibiting the publication of the name of the Applicant in these proceedings, or any information that might tend to reveal his identity. He is assigned the anonym ‘SHTD’. The anonym will be substituted where necessary in other documents which are quoted in this decision, and other members of his family will be referred to by initials.
BACKGROUND
SHTD is a 36-year-old citizen of the Socialist Republic of Vietnam. He first arrived in Australia in 2006 on a student visa. He returned home and then re-entered Australia in 2009. Apart from one relatively brief return trip to Vietnam, he has resided in this country ever since.
In December 2013 SHTD made a combined application for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa (which is a permanent visa), sponsored by his wife, Ms TN.
In 2014 a Magistrate at the Magistrates’ Court of Victoria granted a Family Violence Intervention Order (‘FIVO’) against SHTD, with Ms TN and their son, LP, named as the affected family members.
On 18 November 2014 a delegate of the Respondent granted the temporary partner visa applied for by the Applicant.
In September 2015 an incident occurred involving the Applicant’s infant son, LP, which led to SHTD being found guilty in May 2016 of the offence of Recklessly cause injury. This will be referred to later as the ‘iPad incident’.
In October 2015 another incident occurred involving the Applicant and LP, which led to a Magistrate granting a FIVO against SHTD, naming Ms TN, LP and their infant daughter IP, as affected family members. This will be referred to later as the ‘bottle incident’.
Between November and December 2015, the Applicant called Ms TN’s mobile phone number on four occasions, in breach of a condition of the FIVO.
In February 2016, the Children’s Court of Victoria found that the Applicant’s children were in need of protection, and a protection order was granted. SHTD gave an undertaking to the Court to comply with the FIVO and commence family law proceedings in relation to custody arrangements as soon as possible.
In May 2016 SHTD pleaded guilty to the offence of Assault with instrument, in relation to the bottle incident. No conviction was recorded. The proceeding was adjourned with an undertaking.
In August 2016 SHTD sent Ms TN a ‘Facebook friend request’, in breach of the no contact provisions of the FIVO.
In October 2016 a Magistrate extended the October 2015 FIVO until October 2021.
In January 2017 SHTD was convicted of the offence of Persist contravene family violence order in relation to the mobile phone calls to Ms TN in breach of the FIVO. He was also convicted of the offence of Contravene family violence final intervention order in relation to making the ‘Facebook friend request’ to Ms TN. He was fined $300.
In 2019 the Applicant posted a photograph of his daughter, IP, on his ‘Facebook’ page, in breach of the FIVO. In respect of this offending, in January 2020, he was found guilty of the offence of Contravene family violence intervention order. The proceedings were adjourned, and he was ordered to pay $300 into the Court Fund.
On 16 April 2020, the Department of Home Affairs (‘the Department’) sent SHTD a Notice that consideration was being given to refusing his application for a Partner (Residence) (Class BS) visa on character grounds under s 501(1) of the Migration Act 1958 (‘the Act’). The Applicant made representations in response to this Notice.
On 9 November 2022 a delegate of the Minister refused to grant the visa (i.e., the permanent partner visa) under s 501(1) of the Act. SHTD was notified of this decision on 15 November 2022.
On 23 November 2022 SHTD lodged an application with the Tribunal seeking review of this decision.
HEARING
A hearing was held on 23 January 2023. The Applicant was represented by Mr Quynh Sy Do, a migration agent, of Endless ILA Pty Ltd. The Respondent was represented by Mr Keith Sypott of The Australian Government Solicitor. The Applicant gave evidence and was cross-examined. No other witnesses were called by either party. The Tribunal appreciates the assistance of an interpreter of the Vietnamese language.
The Tribunal received a Statement of Facts, Issues and Contentions from the Applicant (‘ASFIC’) and from the Respondent (‘RSFIC’).
The following documents submitted by the parties were taken into evidence:
(a)Victorian Department of Health and Human Services Application and Disposition Report to the Children’s Court, dated 21 October 2015 (Exhibit A2);
(b)Victorian Department of Health and Human Services Addendum Report to the Children’s Court, dated 14 December 2015 (Exhibit A1);
(c) Volume of ‘G’ documents submitted by the Respondent (Exhibit R1); and
(d)Volume of supplementary ‘SG’ documents submitted by the Respondent (Exhibit R2).
Because of s 500(6L) of the Act, the Tribunal must make a decision within eighty-four days of a person being notified of a decision to refuse a visa. Otherwise, by operation of law, the Tribunal is deemed to have affirmed the refusal decision. The eighty-fourth day in these proceedings was agreed to be 7 February 2023.
Questions before the Tribunal
Section 501(1) of the Act states that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
So, it can immediately be seen that there are two elements to this subsection: the decision-maker must first consider whether the person passes the character test (which is defined in s 501(6) of the Act). If they are not so satisfied, then the second question is whether the discretion should be exercised to refuse the visa.
Applicant’s submissions
Mr Do contended that SHTD passes the character test and, that if the Tribunal is not satisfied that he does, nonetheless, it is contended that he is not an unacceptable risk of harm to the Australian community to warrant his removal from Australia at the ‘expense of his children’s well-being’. It was further contended that the Applicant’s former wife, Ms TN, was ‘misusing laws’, and in particular (ASFIC paragraphs, 17-20):
The Delegate of the Minister has erred when taking into account, and choosing to rely on, some of the material gathered by the police in their investigation/s, mostly untested evidence, to warrant visa refusal.
Speculation has informed the delegate in reaching his/her determination that [SHTD] has engaged in acts of family violence that raise serious character concerns such that the Australian community would expect [SHTD] should not continue to hold a visa.
There is compelling evidence of the intentional abuse and misuse of Australian law by [Ms TN] against [SHTD] firstly to exert power and control, secondly to punish [SHTD] for non-compliance by threats of withdrawing his sponsorship and separation from his children, and finally, entrapment which led to criminal prosecution and visa refusal.
[Ms TN] has weaponized the children to get her way with [SHTD]. She has shown to be readily willing to unreasonably restrict [SHTD’s] access to the children against their best interests, and used threats of deportation against [SHTD].
Mr Do submitted that, at first glance, SHTD appears to be ‘a deplorable human being with an ingrained tendency to violence who abused his wife and his son’. He submitted that the Applicant’s character is the opposite of this; and that he is, in fact, a victim of an extinguished romance and a victim of a ‘woman well versed in family violence provisions’ who has ‘weaponised’ the law to push the Applicant out of her life and the lives of her children, simply because she no longer loves him.
Mr Do submitted that the delegate who made the reviewable decision failed to have regard to the complex information in the application for the visa.
Respondent’s submissions
The Respondent, for his part, contended that SHTD does not pass the character test, as there is a real and ongoing risk that he would engage in further criminal conduct if permitted to hold a visa.
In this submission, the Minister sought to rely on s 501(6)(d)(i), which states:
For the purposes of this section, a person does not pass the character test if:
…
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; …
The RSFIC noted that s 501(6)(d)(i) previously required that there be a “significant risk” of future criminal conduct, but the word ‘significant’ was removed by the Migration Amendment (Character and General Visa Cancellation) Act 2014, Schedule 1. The Explanatory Memorandum to that item in Schedule 1 stated:
The purpose of the amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.
Oral Evidence of the Applicant
SHTD confirmed he was born in 1986 in Vietnam. He has two sisters who remain in that country, as does his widowed father. He said he completed grade 10 at school. He said he had not undertaken any vocational training in either Vietnam or Australia. He currently works on a farm for 15 hours a week.
SHTD said he met Ms TN around 2010 or 2011, about a year after he arrived in Australia. He said he had not been previously married, but Ms TN had been. He said that he ‘heard her previous husband committed family violence on her by placing a knife on a table in front of her’. SHTD said he understood Ms TN took her first husband to Court. He said there were no children of Ms TN’s first marriage.
SHTD said that he understood Ms TN ‘asked police to help her obtain permanent residence in Australia’ when she took her first husband to Court.
SHTD said he and Ms TN formed a romantic relationship and moved in together, marrying in 2013. He said initially, the relationship was “very happy. She was studying English. I was working. We would go out to eat or visit her older sister every Friday”.
Their first child, LP, was born in January 2014. SHTD said he was working at the time. When he came home, he would bathe LP, change his clothes, feed him, and give him an 8 pm bottle. He said Ms TN was not working at this time and was looking after LP, but ‘the care became too much for her when he came home’.
After LP was born, SHTD said problems emerged in his relationship with Ms TN:
She was losing her temper quite easily. Every time LP cried, she would get angry and yell and then get angry at me as well. She would demand things when we went shopping that we already had at home. If I didn’t agree, she’d chuck a fit or when we got home, smash things up. I’d have to pick up LP. I tried to talk to her. She would say to me ‘I’ll send you back to Vietnam’. On Fridays, when I get paid, she’d demand all the wages. I wanted to learn to drive; she wouldn’t allow me to get a driver’s licence. I asked her to show me how to withdraw money from the bank. She said I don’t need to. Someone used to take me to and from work, we paid them. If I wanted to go to a café with friends, I would have to furtively take coins from the piggy bank in order to have money for coffee. If short of money, I’d borrow from my boss and send money to her. If she got angry, she’d say ‘I’ll send you back to Vietnam’, because at the time she was sponsoring me to be in Australia. I was fearful for her anger.
SHTD said he was working at the time, picking strawberries on a farm. The Applicant said that Ms TN would travel back to Vietnam about once a year, sometimes twice a year, to see family. He said that on one occasion he accompanied her, with the children LP and IP.
Mr Do asked SHTD about their financial circumstances at the time. He said he would give all his income to Ms TN, and she would bank it and pay rent and household expenses. He said if he asked for money, she would say, ‘don’t worry, it is in the bank’. He said he later found she was taking care of her father, which he was quite happy about. SHTD said when he needed money for his parents, Ms TN would ‘remain quiet’, but she would send $200 back to her father every month. He said Ms TN said to him, ‘I am sponsoring you; what more do you want?’.
Mr Do asked SHTD if Ms TN had ever received psychological treatment. He responded:
Yes, she went to a psychologist because she often expressed a wish to hit LP and threatened to kill LP. Her older sister reported that to LP’s carer and that person reported it to Child Protection. They asked me if I could stay at home to look after the two children. I said yes. She would stay home. On Fridays, I would take her to her sister’s place to help reduce stress. I suggested she see a psychologist, which she did.
Mr Do asked SHTD about the iPad incident. SHTD said he did not hit LP on the head with an iPad; and did not hit him at all. He said he and Ms TN were in bed, and LP crawled up between them when he was using his iPad, and the child ‘came into contact accidentally’ with the iPad. He agreed that he pleaded guilty to the charge of recklessly causing injury when the matter went to Court.
In terms of the bottle incident, which occurred when he and Ms TN were visiting her sister overnight, SHTD said:
At the time, LP started to cry. I took him to the balcony to sooth him. Then I took him to a room. I gave him a bottle of milk. He didn’t want it. I placed my hand on him. He cried so much. Friends came in and they dressed me down. ‘Why can’t I pacify the child?’ I continued to push the bottle of milk at him. I went home and police came and looked for me.
When asked whether he saw LP vomiting that day, SHTD responded: “No. I didn’t pay any attention. When my wife started yelling at me. I went home.”
Mr Do asked SHTD why he pleaded guilty to the charge of Assault with instrument. He replied:
At the time, I knew next to nothing. My lawyer advised me to plead guilty so the penalty would be more lenient. People tried to frighten me by saying I might get two years in prison. My lawyer told me to plead guilty.
Under cross-examination, SHTD confirmed that he first came to Australia as a tourist for a short stay of about three months and then came back to settle in 2009. He said he had been back to Vietnam once in 2015 to visit his parents. He said on that occasion he and Ms TN stayed with her parents for two weeks, then with his parents for two weeks, and then stayed with one of Ms TN’s sisters for a month.
Mr Sypott asked SHTD about an FVIO issued by the Magistrates’ Court in 2014. The Applicant said he could not remember the year but remembered going to Court and believed that related to an occasion when Ms TN claimed that he kicked the ‘fridge, which he admitted he did’. He agreed that he went to Court, and an FVIO was granted. SHTD believed that the order included that he not undertake any action in the next six months to injure Ms TN or damage any property. He said the order did not affect their living arrangements, and he continued to reside with Ms TN.
Mr Sypott took SHTD to the police report of the iPad instrument, which stated that the Applicant raised the iPad and hit LP in the face. He responded: “No. If I had hit him there would have been an injury. I was just being playful. The iPad came into contact with his face very lightly. If I hit him, there would have been an injury to his face.”
Mr Sypott asked if the Applicant was saying that he was using the iPad and ‘lightly bonked’ LP with it. SHTD replied: “No. He woke up. He crawled towards me. I was watching the iPad. I pushed it towards his face and accidentally touched his face. He cried a little bit.”
When asked why Ms TN told the police a different story, SHTD said he would not know why she said that. When pressed as to whether he was suggesting Ms TN made it up, he said: “I saw what the police said. It was not the truth. I just pushed it towards the face.”
Mr Sypott asked SHTD about the bottle incident and asked if SHTD was saying in his evidence-in-chief that he held LP down to give him his bottle. SHTD said, “Yes”.
SHTD denied squeezing his hands around LP’s neck. He said, “It was on the chest. If I did, he would have found it difficult to breathe.”
SHTD agreed that he pushed the bottle into LP’s mouth but said he did not do so aggressively. He said the lawyer also advised him to plead guilty so that the penalty would be lenient. “It was a small thing, blown out of proportion.”
When asked whether he thought Ms TN over-reacted in reporting the matter to police, he responded, “I think they got sick of me.”
Mr Sypott noted that the Applicant had lodged a Victorian Department of Health and Human Services (‘DHHS’) report to the Court where a doctor who examined LP that night recorded ‘Slight red marks on LP’s chest and the back of his neck’ and asked if SHTD still maintained he put his hand on the child’s upper chest and not his neck. The Applicant responded, “Yes”.
SHTD agreed that after that evening, he moved out of the marital home. He agreed that an FVIO was granted and said that police read it out to him in general terms.
Mr Sypott said to the Applicant that he did not comply with the provisions of the order because he contacted Ms TN. He responded, “But she called me. She was the one calling me.”
Mr Sypott asked if SHTD accepted that he called Ms TN four times. He responded: “No. I didn’t call her. She called me once, and we talked. I can’t recall calling her at all.”
Mr Sypott then asked SHTD whether he remembered pleading guilty to breaching the FVIO in relation to calling Ms TN on four occasions. He responded, “No, I don’t.”
Mr Sypott then asked SHTD whether he remembered in 2016 sending Ms TN a ‘Facebook’ friend request, and later pleading guilty to another breach of the FVIO. He said he remembered being in Court and being told not to breach the conditions again.
Mr Sypott asked SHTD whether he remembered being back in Court in January 2017 and being convicted of contravening an FVIO. He responded: “I remember a fine of $300 being imposed on me. She accused me of publishing photos on Facebook.”
Mr Sypott then said that incident occurred in 2020, when the Applicant posted pictures of his daughter IP. SHTD responded: “I didn’t remember I wasn’t allowed to do that – I forgot. I mistakenly thought it was a minor thing to publish a photo of my own daughter.”
SHTD told the Tribunal that there was still an FVIO against him, which had been extended, and which he believed expires in February 2023.
SHTD was asked if he agreed with written submissions made on his behalf that he is a victim of entrapment by Ms TN. He said: “I agree. I think she’s sick of me. She doesn’t want me to live here anymore. I think she has made these things up. She knows I don’t know much about the law.”
SHTD expanded that he felt Ms TN made up the iPad incident and the bottle incident but agreed that the Facebook photo was a result of his action.
The Applicant said that Ms TN had told him she got permanent residency after the ‘knife on the table’ incident with her first husband.
SHTD said he remembered being asked to see a psychologist, Ms Lyn Pham, by the Court. Mr Sypott noted that Ms Pham, in her report, recorded that he had a ‘hot temper and could be verbally aggressive towards Ms TN’. SHTD said: “Yes, I get angry at times, yes.”
SHTD was asked about Ms Pham’s remark that he had told her he would ‘throw objects and kick furniture’, and that ‘he had slapped her on one occasion’ and whether this was true. The Applicant responded: “Yes, I did slap her once very lightly because she kicked me.”
Mr Sypott noted that in his evidence, SHTD had said Ms TN was very controlling with household finances and would not let him learn to drive, but he had not mentioned any of this to Ms Pham. SHTD responded: “Because she concentrated on evidence about my life.”
Mr Sypott then foreshadowed to the Applicant that he would make submissions that, because the Applicant did not mention these things to Ms Pham, they did not occur, and asked if SHTD had any response. He responded: “I did tell Ms Pham that Ms TN did not give me money and told her I didn’t have a driver’s licence.”
In answer to a direct question from the Tribunal about whether he told Ms Pham that Ms TN hit and kicked him, SHTD said that he had.
The Applicant was asked about parenting orders he agreed with Ms TN. He said he also agreed to attend courses on bringing up children. He says the orders allow him to see LP and IP once every two weeks, initially for three hours, but it was then increased to six hours. He said he pays money towards child maintenance.
SHTD agreed that LP and IP live with Ms TN. She makes day-to-day decisions about their care but must telephone SHTD’s sister if something major happens, and his sister then relays the information to her. He said that his sister must be present when he sees LP and IP, and he had not seen his children for ‘two or three years’ because, first, of the pandemic lockdowns and, then, because his sister had health problems, as did one of her children. As the person stipulated to be present during contact with LP and IP, his sister had been unable to accompany him for visits.
SHTD said he pays between $200 and $300 a month for child maintenance. He said that his ‘boss’ had said if he got permanent residence, he would allow him to work full-time, and then he could provide more money for his children.
In the papers before the Tribunal was a reference to SHTD being in a relationship with Ms C in 2020. Mr Sypott asked if the Applicant was still in a relationship. He said: “It hasn’t really finished. We keep in communication with each other.”
When pressed as to whether he would consider he was still in a relationship with Ms C, he responded, “An emotional relationship. If she needs anything for her children, I am happy to help. She doesn’t drive.”
He said that they had an intimate relationship but agreed with Mr Sypott’s characterisation that it was ‘on again, off again’. He told the Tribunal that he helps take care of Ms C’s three children, two sons aged 20 and 16, and a daughter aged eight.
SHTD said he commenced his relationship with Ms C “about five or so years ago”, but although he would like to move in with her, she says she is not ready. He told the Tribunal he speaks to Ms C on a daily basis. He said that he has never committed any acts of violence against Ms C or her children.
SHTD said that he had not called Ms C as a witness because she had persistent ill-health, often attending the doctor. In answer to direct questions from the Tribunal, SHTD said that he has lived with Ms C in the past, including for periods of a month, and then he returns to his aunt’s home, where he normally resides. SHTD said that Ms C had had two miscarriages where he was the father.
When asked whether he was a risk of re-offending, SHTD said he was not; he said he had not lost his temper with the children or hit them. He was asked about being interviewed by Mr Patrick Newton, a clinical and forensic psychologist, for a report, where Mr Newton recorded that he was vulnerable to stress. SHTD said: “He only met me a few times over the phone. I have learnt how to deal with stress. I have a certificate for it. I learned to walk away and calm down.”
SHTD confirmed that he undertook a 14-week Vietnamese men’s family violence course. He said: “Yes. I learned how not to get angry. To think about happy things. To seek solutions. To walk away and talk later.”
The Applicant confirmed he had also undertaken a parenting course run by Smart Moves Post Separation Parenting Group. He said he learnt:
How to look after children. How children behave. If children make me angry, go to an environment, maybe outside so the stress will be defused. Don’t talk about money in front of children. My ex-wife would not co-operate. Sometimes she wouldn’t bring the children – her sister would.
In answer to direct questions from the Tribunal about his finances, the Applicant said he does not have to pay rent at his aunt’s house, which helps him in being able to pay maintenance for LP and IP, as well as regularly sending small amounts home to support his father and the unmarried sister who lives with his father.
The Tribunal asked SHTD if he had not seen his children for up to three years because of the unavailability of the person who had to be present, why had he not asked for the order to be varied. SHTD said in the beginning, it was the pandemic and then “the lady who had to be there had an operation on her leg and her children were sick as well. No one explained that to me.”
The Tribunal then said that he knew he could vary it because he had previously varied it in terms of having increased time with the children. SHTD said, “I did explore with my lawyer seeing them without her.”
The Tribunal asked SHTD why he had set up a ‘Facebook’ page with a different name but with photographs of him. He responded: “Sometimes people use an old name. That was the name of a friend of mine.”
The Tribunal then put to the Applicant that it gave the impression he was making contact with Ms TN but using another name. He responded: “My friend created it. I did not mean to send a ‘friend request’ to her.”
The Tribunal also noted to SHTD that his evidence, in relation to the bottle incident, was that he did not know at the time that LP had vomited soon after, because he had gone home. He confirmed that was the case. The Tribunal then pointed out that the police report stated that he left two hours after the incident. SHTD said that he went to another room and went to sleep, before going home, so he did not see LP vomiting.
CONSIDERATION OF THE CHARACTER TEST
Section 501(1) of the Act provides that a visa applied for by a person may be refused if the decision-maker (in this case, the Tribunal) is not satisfied that the person passes the character test.
In this case, the Respondent’s case is that SHTD does not pass the character test because he is a risk of reoffending.
Mr Sypott submitted in his closing submissions that the Applicant, in his oral evidence, minimised his culpability in terms of his offending and portrayed himself as a victim of Ms TN’s machinations. The Respondent thereby submitted that SHTD lacks insight into his offending. The Tribunal agrees that SHTD minimised his offending in his evidence. He gave evidence that was inconsistent and partial, and which the Tribunal concludes was not always frank.
Before the Tribunal is the detailed psychological report, prepared for the Court in December 2015, by Ms Linh Pham, psychologist (GD, pp 136-143). Relevantly, Ms Pham was able to converse with the Applicant in his own language, Vietnamese, when she interviewed him for her report. She interviewed him on seven separate occasions, spanning 16 October to 11 December 2015.
Ms Pham recorded the Applicant telling her of a difficult childhood where his father was violent and abusive towards his (now late) mother. The Applicant told her that in the first few years of his relationship with Ms TN, everything was going well. He told Ms Pham that after the birth of LP he worked harder to support his new family. After IP was born, Ms TN became unwell. Ms Pham recorded that SHTD described what appeared to be symptoms of postnatal depression, including that Ms TN became obsessive and controlling, yelled at him frequently, and that whatever he did was not good enough.
He told Ms Pham he felt unappreciated, and his patience was wearing thin because he was working long hours and having to do housework when he came home and then care for the children because Ms TN was not well.
He told Ms Pham that he would scream at Ms TN and become verbally aggressive. He said he would kick the furniture and throw objects and, on one occasion, slapped Ms TN.
In terms of the bottle incident, SHTD told Ms Pham that, on the day in question, he and Ms TN had been at a lunchtime party. He said he had consumed about five beers. They then went on to Ms TN’s sister’s house. When there, Ms TN said she was unwell, and left SHTD to care for the two children. She went to mingle with her two sisters. Ms Pham then wrote:
SHTD stated that he was exhausted by late afternoon as his 20 month-old son kept on crying and would not settle. By this time, SHTD admitted that he lost control of himself and tried to stop LP from crying by forcefully pushing the bottle into his mouth but LP cried even louder. What happened next shocked SHTD as he grasped his son’s neck and yelling [sic] for LP to stop crying. When LP screamed louder and everyone rushed into the room, SHTD recalled he let go but there were red marks on LP’s neck. SHTD reported that his wife cried and hit him and pulled him away from LP. He felt attacked by her family. After he realised what had happened, SHTD revealed, “I cried so much”.
Later in her report, Ms Pham said that the Applicant revealed to her that, after being released by police and reflecting on his act of violence towards his son, he could not stop crying and contemplated suicide. Ms Pham later wrote that SHTD presented as guilt-driven and remorseful for what had happened.
Ms Pham’s account of what the Applicant told her about what unfolded on the evening of the bottle incident is broadly consistent with what the interviewing detective recorded in the police report (SGD, p 403). What SHTD told this hearing, set out above, departs from those two generally consistent accounts.
Where there is inconsistency with the Applicant’s account at this hearing, I prefer the facts as set out in Ms Pham’s report. She interviewed the Applicant in private on seven occasions. The events which he described to her were much fresher in his mind. Ms Pham had the advantage of being able to speak to him directly in his own language. What he said to her in 2015 has much more of the ring of truth with what Ms TN and the other witnesses present, notably Ms TN’s niece, told attending police, in relation to the bottle incident, at that time.
The police detective recorded that Ms TN’s niece said she was present in the room at the time of the offence. The police record that the niece would (SGD, p 404):
Give evidence of observing the accused grab the victim around his neck with both of his hands and shake [sic] the victim….Evidence of noticing victim vomiting and observations of bruising/red marks to his neck. Evidence of going with victim in ambulance to Royal Children’s hospital. Will give evidence of taking two photographs of victim’s injuries.
The Tribunal is mindful that this content is in a Victoria Police preliminary brief, based on a statement made by the informant. It was not tested in Court, and the niece never gave evidence under oath.
I am satisfied that, on the evening of the bottle incident, SHTD lost his temper with LP, who had been crying and not settling down. I am satisfied that he pushed the bottle into LP’s mouth more forcefully than he should have, given LP was only aged 21 months. I am satisfied that he placed his hands around LP’s neck. I do not conclude that he was trying to ‘choke’ his son. The marks recorded by the doctor who examined LP at the hospital later that evening are not consistent with a choking hold. But the difficulty for SHTD in maintaining the position that he did at the hearing, in relation to the bottle incident, is that he did plead guilty at Court to assaulting LP with an instrument; so he did accept that he had placed the bottle in his son’s mouth with unwarranted force.
It is therefore clear to me from what the Applicant told Ms Pham that the elements of the offence of Assault with instrument were made out on the facts, and that is supported by SHTD pleading guilty to that charge, which means that he, himself, accepts that all the elements of the offence were satisfied (see Maxwell v The Queen [1996] HCA 46; 83 CLR 501, at [19]).
In respect of the iPad incident, the facts rely only on what Ms TN told the interviewing detective; there was no other person present other than the Applicant and their two infant children. SHTD may reasonably disagree with the precise details of what happened, but he may not retreat from the fact that he pleaded guilty to recklessly causing injury, by hitting LP on the head with the iPad. He might well have meant it to be playful. While there is no direct evidence in the papers of any ‘injury’ to LP, the Tribunal cannot go behind the fact that the Applicant pleaded guilty to that offence in Court.
The charge of Recklessly causing injury was based on what Ms TN told the detective, noting that it was almost a month after the event had occurred. However, again I must accept that SHTD accepted all the elements of that charge, because he pleaded guilty. No doubt he was not intending to injure his infant son by tapping him with the iPad, but he pleaded guilty to acting recklessly, which means he was reckless as to whether or not his actions might cause harm.
SHTD’s other evidence about when he contravened FIVOs is also completely unsatisfactory and is rejected. He told the Tribunal that he did not ring Ms TN on four occasions, but that “she rang him”. This is at odds with him admitting to the Court that he rang her on four occasions and pleading guilty to the contravention charge thereby based. It is also at odds with the telephone log-in evidence, which shows the calls made by the Applicant.
I also conclude that SHTD deliberately used another name when seeking to entice Ms TN to respond his ‘friend request’ on Facebook. It was immediately apparent to her that he was the person seeking to make contact, because the ‘Facebook page’ contained several images of SHTD.
Because of the lack of candour in his evidence, and his contradiction of some facts surrounding his offending, which he had previously admitted, I am unable to conclude that there is no risk of him re-offending. While Ms Pham records that he reflected on his offending after being released from police custody to the extent that he had suicidal ideation – which I accept is what he told her in 2015 – his rowing back from taking responsibility now leads me to conclude he represents some risk. As Mathew J (sitting as a judicial Deputy President of the Tribunal) said in Re: Lam and Minister for Immigration andMulticultural Affairs [1999] AATA 56:
Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.
I also conclude that he deliberately used another name when seeking to have Ms TN respond to a ‘friend request’ on Facebook; once she clicked on the request and was taken to his ‘page’, it was immediately apparent to her that he was the person seeking to make contact, because the ‘Facebook page’ contained several images of SHTD. This was contact that he knew was expressly prohibited by the terms of the FIVO.
There are some things that favourably reflect on SHTD. In evidence is a Vietnam Department of Justice certificate dated December 2017 (with certified English translation) recording that he has no criminal record in that country (GD, pp 53-54). There is also an Australian National Police Certificate (GD, p 52) recording only two appearances before Courts in this country, to which must be added the offence declared in the ASFIC in January 2020, where SHTD was found guilty of contravening a FIVO by posting an image of his daughter on his Facebook account. There is no other offending in evidence, including any road traffic offences.
Mr Do submitted that SHTD does not have any drug or alcohol addiction, has support of family and friends, and has not provided any misleading information to the Department. He further submitted that SHTD has resided in Australia since 2009, some 13 years, and has two Australian citizen children in this country.
There is a character reference for the Applicant dated May 2020 from the Head Abbess at a Buddhist temple in Melbourne, who records that SHTD is a frequent attendee at the temple, that he is always willing to help on a voluntary basis, and that he has undertaken valuable community work (GD, p 187).
There is a statutory declaration from a Mr HHN dated May 2020 who recorded that he had suffered a stroke and was at a Centrelink office and told to obtain further documents when SHTD, whom he did not know, approached him to help. SHTD drove Mr HHN to this doctor and to his bank to obtain the necessary paperwork, and they became friends. Mr HHN said he would never forget the act of kindness and that SHTD is ‘very generous and kind-hearted’ (GD, p 188).
There is a statutory declaration from MHV dated May 2020 (GD, p 189) stating that the declarant came to know SHTD when both of them were volunteering at the Buddhist temple, and stating further, “On many occasions, I have witnessed SHTD’s continued dedication and commitment to helping others at the temple and community fundraisers”. The declarant makes observations about SHTD wanting to be close to his children in Australia and states:
After witnessing his dependable and compassionate attitude towards others in the community, I can also attest that he is a devoted father who wishes to provide the best level of support for his children.
There is a statutory declaration from Mr NVT dated May 2020 (GD, p 190) declaring that he is a co-worker with SHTD on a farm and has worked with him for more than three years. Mr NVT states that SHTD has spoken a lot about his children and knows he can only see them every fortnight. Mr NVT says:
SHTD is a hard-worker who is trying to make ends meet and support his children. I know that he also sends money to his sick father in Vietnam. This shows that he is a family man who cares for the well-being of his family members.
Mr PD provided a statutory declaration in May 2020 (GD, p 191) stating that he owns a farm labour recruitment agency and has placed SHTD at various strawberry farms in Victoria over four years. Mr PD records that over four years, he has found the Applicant to be a responsible and reliable worker with a positive attitude.
Mr PVN provided a statutory declaration dated May 2020 (GD, p 192) that he came to know SHTD about three years earlier through ‘sheer coincidence’. Mr PVN stated that his car broke down late one night on a deserted road. SHTD came by, and he flagged him down. The Applicant stopped to help, and they exchanged contact details. Mr PVN said they caught up after a few weeks and became friends, regularly having coffee together. Mr PVN had entertained SHTD at his house, and the Applicant had met his wife. He stated that “In my opinion, SHTD is a very good man who is responsible and reliable. He is kind, and is willing to help others in need”.
SHTD’s uncle, Mr THKP, provided a statutory declaration in May 2020 (GD, pp 193-194) that he has known the Applicant since he was a child, as the son of his younger brother. He said that he relies on SHTD to drive and accompany him to the doctor for health checks, to buy medication and to the supermarket to purchase groceries. SHTD lives with Mr THKP. He went on to say:
He also assists me perform household chores such as cleaning, vacuuming, gardening and cooking. I am also reliant on him for emergency situations, for example about 1 year ago I suffered an asthma attack whilst in the park and SHTD answered my call and took me to the doctor.
I have become so reliant on SHTD that I could not imagine carrying out my daily chores without his assistance. He means the world to me. SHTD is a very compassionate and caring nephew, he helped me not for money but because he has a genuine interest in my well-being.
…
Pursuant to Family Court Orders, SHTD has a share arrangement with his former wife in relation to his two children. When the children are with him, he often takes them home to visit me. From my observation, he is a loving father to them and likewise his children are always happy to spend time with their father.
In BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 (‘BOY19’), O’Bryan J was considering the concept of ‘good character’ in terms of the conferral of Australian citizenship. However, His Honour’s remarks at [47]-[50] are relevant:
47.In Irving v Minister of State for Immigration, Local Government & Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422, the Full Court considered the meaning of the expression “good character” in a provision of the Migration Act which gave the Minister power to refuse or cancel a visa if the Minister was satisfied that the relevant person was not of good character. Davies J observed (at 424-5):
The question whether a person is or is not of "good character" is primarily an issue of fact. It is not the function of this court to form its own view of such a fact. Provided that the decision-maker has approached the issue correctly, has acted in accordance with the principles of procedural fairness, has taken into account all material factors, has disregarded immaterial factors and has reached a decision which was open on the material, which is to say that the decision made was not one which no reasonable decision-maker would have made, then this court will not grant an order of review. The Administrative Decisions (Judicial Review) Act 1977 (Cth) confers on the court not the function of reviewing decisions on their merits, but the function of correcting those errors which may loosely be described as errors of law, that is to say errors which offend the legal principles laid down for administrative decision-making.
It should also be observed that the term "good character" is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual's reputation or repute: see Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person's inherent qualities. I do not suggest that, in the context, "good character" refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will tum his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.
48.His Honour also observed (at 427-8):
The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of "good character" requires the exercise of a value judgment. There are no precise parameters which distinguish "good character" from "bad character". Although, in general, "good character" can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision.
49.Similarly, Lee J observed (at 431):
Unless the terms of the Act and Regulations require some other meaning be applied, the words "good character" should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review subjective public opinion... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character....
Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weakness or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.
50.In Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321; [1999] FCA 1277, the Full Court again considered the meaning of the expression “good character” in s 501 of the Migration Act which gave the Minister power to refuse a visa if the Minister was satisfied that the relevant person was not of good character. The Court observed (at [8]) that the meaning to be given to the expression depended on the statutory purpose:
Section 501 does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of “good character” in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
The Tribunal notes that the character testimonials referred to above are all more than two years old, and no fresh ones were provided for this hearing. Nonetheless, the Respondent did not challenge the sentiments expressed in them. The Tribunal accepts that SHTD has made some positive contribution to Australia through his employment, and through his voluntary work at the Buddhist temple. There are also two testimonials detailing spontaneous acts of kindness undertaken by SHTD to aid strangers who were in need. In each case a friendship ensued.
Nonetheless, and accepting that there is some evidence of significant difficulties in the Applicant’s former marriage to Ms TN, he should not have taken out his frustrations on his infant son. That is reprehensible conduct. His equivocation at the hearing about the two incidents which led to the criminal charges does him no credit. The Respondent submits that the Applicant fails on the limb of the character test in s 501(6)(d)(i) that there is a risk that SHTD would engage in criminal conduct if he were to remain in Australia.
Mr Newton wrote two psychological reports on SHTD, one on 10 September 2020 and a supplementary report on 5 July 2021 (GD, pp 94-99). The first report was not before the Tribunal. Mr Newton assessed SHTD’s risk of violent recidivism as ‘low’, and his risk of general reoffending also as ‘low’. Mr Newton includes some commentary in his report about the fact that, at the time of writing, SHTD was not employed and that if this situation remained, it might affect the level of risk. The evidence before the Tribunal is that SHTD is no longer unemployed. It is notable in perusing Mr Newton’s report that several of the assertions that the Applicant made, and which were made on submissions on his behalf, about Ms TN ‘entrapping’ him are simply not borne out. No such suggestions were made by the Applicant to Mr Newton (who used a Vietnamese interpreter when he examined the Applicant). Had they been, the Tribunal is confident they would have been included in Mr Newton’s report as relevant information.
I am satisfied to make a finding that SHTD does not pass the character test. This is because of his havering over his offending history. Such an attitude can only incline a decision-maker to draw a conclusion that SHTD is not completely remorseful for his conduct. This inevitably plays into a finding that there is some risk, even if a low risk, of future offending conduct.
Having made this finding, the Tribunal must now consider whether the discretion in s 501(1) should be exercised to refuse the visa. In undertaking this task, decision-makers, including the Tribunal, are obliged to have regard for any direction the Minister has made under s 499 of the Act. In this case, the relevant ministerial direction is Direction No. 90 (‘the Direction’), which was made by the previous Minister in 2021.
APPLYING THE DIRECTION
The Direction requires the Tribunal to consider four primary considerations, as relevant to an applicant. It also lists four other considerations that, if relevant, must be addressed but makes clear this is a non-exhaustive list. The Tribunal should consider any other matter which is consistent with the purposes of the Act.
Primary consideration: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)
The nature and seriousness of the conduct
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children – regardless of the sentence imposed – or acts of family violence – regardless of whether there is a conviction for an offence, or a sentence imposed.
Because of the wording of paragraph 8.1.1(a)(ii) of the Direction, the Tribunal is compelled to find that SHTD’s offending against LP is to be viewed very seriously.
This part of the Direction also requires the Tribunal to consider whether the offending was committed against a vulnerable member of the community. An infant child is intrinsically vulnerable, because he or she relies on adults for protection, succour, and support.
There is no evidence of any sexual crimes or other crimes of violence. The Applicant has not, in the knowledge of the Tribunal, been in immigration detention. There is no evidence of any false information being given by SHTD to the Department, nor of criminal or other conduct subsequent to any formal warning given by the Department.
The Tribunal must consider the frequency of the offending, and any trend of increasing seriousness. The two incidents involving LP occurred in September and November 2015. The breaches of the FIVO occurred in November and December 2015 (in regard to the telephone calls to Ms TN); in January 2019 (in regard to sending a ‘Facebook friend request’ to Ms TN); and in March 2019 (in regard to posting a picture of IP on ‘Facebook’).
There has been no frequency of offending in respect of the offences relating to the Applicant’s child, or any other children. There have been three breaches of FIVOs, but I do not regard them as reflective of a trend of increasing seriousness.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Direction states that decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Direction states that some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.
Paragraph 8.1.2(2) of the Direction requires the Tribunal to have regard to, cumulatively, the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct and the likelihood of that.
Given the confined nature of the circumstances of the Applicant’s offending, if he were to re-offend, the nature of the harm would likely be visited on any future children he might have. That would be completely unacceptable.
As discussed above, Mr Newton has provided the only criminogenic risk in relation to SHTD, and he concluded that there is a ‘low risk’ of either violent or general reoffending. Although Ms Pham was asked to provide a risk assessment, and she did apply a measurement tool, she focussed more on protective measures and treatment of SHTD at that time, noting what she considered was his genuine remorse at what he had done. Ms Pham did not provide a definitive risk assessment in her report.
The Tribunal accepts Mr Newton’s assessment. Added to his observations is that the passage of time has seen no recurrence of any offending by the Applicant, including no evidence of any harmful conduct towards the children of Ms C, two of whom are minors. Photographic evidence of SHTD’s interactions with his own children, LP and IP, depict conventional images of children and their father enjoying family celebrations.
Overall, the Tribunal finds that this primary consideration relating to the protection of the Australian community weighs slightly against granting the visa, partly because of misgivings the Tribunal has about SHTD fully comprehending the gravity of his offending. However, the weight is not heavy because of the finding about the unlikelihood of re-offending.
Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)
The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence.
This consideration weighs against SHTD. It is not necessary to repeat the Tribunal’s observations above. The Tribunal is satisfied that the Applicant has been convicted of two offences which it is satisfied fall into the category of family violence offences.
There is also evidence, including admissions by the Applicant himself, in relation to the 2014 FIVO, that it came about because of his violent conduct at home, kicking furniture. He has also admitted to, on one occasion, slapping his former wife in the face.
The Tribunal must consider the frequency of acts of family violence. Isolating the breaches of the FIVO (none of which constitute violent acts), the two matters on which SHTD pleaded guilty occurred in two months in 2015. There has been no subsequent family violence offending or relevant conduct.
The Tribunal has referred to the two rehabilitative courses that SHTD undertook, one run by the Roman Catholic Church specifically for Vietnamese men, and the other relating to improving parenting skills. His oral evidence showed some appreciation of the lessons he had learnt from participating in those courses.
The Direction requires the Tribunal to consider the extent to which the non-citizen understands the impact of his behaviour on the abused person and any witnesses of the abuse. There is no evidence before me of any impact on witnesses in relation to the bottle incident. However, it clearly was the catalyst that ended the marriage. There is no evidence of any lasting impact on LP or IP. On the contrary, there is photographic and documentary evidence that they love their father and interact with him in a normal way when he is able to see them, consistent with the Court orders.
The Tribunal finds that this primary consideration weighs against granting the visa, but the weight is not determinative because of the isolated nature of the offending.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
The relevant children the Tribunal has identified are the Applicant’s son and daughter, LP and IP, and the two younger children of Ms C.
The Applicant’s children
SHTD sees his children for six hours every two weeks. That is what the Family Court ordered, but his evidence is that, because the orders require a named person to be present and that named person has not been available owing to her own personal circumstances, SHTD has not seen his two children for around two or three years. In the beginning, he said the pandemic affected access, but then the health of the Court-stipulated chaperone.
The Tribunal noted that SHTD could have made an approach to the Court to vary the order to provide, for example, that a different person could be present when he saw his children. He seemed to be under the impression that he had to wait until the current terms of the order expired. In any event, there is some evidence before the Tribunal that, on occasion, Ms TN had not complied with the Family Court order either and has not made LP and IP available when she was obliged to do so.
The Tribunal is generally satisfied that there is a loving relationship between SHTD and his son and daughter. That is supported by the photographs in evidence, the statutory declaration of the Applicant’s uncle, and the anecdotal remarks of his farm worker colleague.
Notwithstanding the period of recent absence, the Tribunal is satisfied that it is in the best interests of LP and IP that SHTD is granted the visa.
Ms C’s children
Ms C has three children. The oldest is now older than 18, so he does not fall into the scope of this primary consideration. The other two are a boy aged 16 and a girl aged eight. The older is a permanent resident of Australia and the youngest is an Australian citizen.
The Tribunal accepts that SHTD has played some role in their lives. However, his is not a parental role, and his own evidence is that his relationship with their mother, Ms C, is ‘on again, off again’. He does not live in the same household, although he has in the past. It is notable that Ms C, in her own statutory declaration, remarked that it took her children some time to accept her relationship with SHTD. That is not uncommon in such a circumstance of a parent commencing a new personal relationship. The Tribunal accepts the evidence that Ms C is not in robust health, which was not aided by the two miscarriages that she has unfortunately experienced, medical proof of which was in evidence.
The Tribunal accepts that it is mildly in the best interests of Ms C’s minor children that the visa be granted.
Overall, the Tribunal finds that this primary consideration weighs in favour of granting the visa. SHTD appears keen to improve his contact with his children and stated that his employer would be prepared to double his working hours if he became a permanent resident, which would enable him to provide more financial support than the child maintenance he currently provides.
Primary consideration: Expectations of the Australian Community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction state:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
…
The Direction highlights specific categories of identified offences: 8.4(2)(a) – acts of family violence; 8.4(2)(c) – commission of serious crimes against, inter alia, women and children; 8.4(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties. The Australian community’s expectation is taken to be a ‘norm’. A superseded version of the Direction (‘Direction No. 65’) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’. In other words, they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may try to derive by some other evaluative or balancing process.
The then Minister, Mr Hawke, made the (current) Direction after FYBR. The fact that it imports the statement that the expectations of the Australian community are to be considered as a ‘norm’ acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant, the relative weight will be affected by circumstances in the individual case.
The Tribunal considers that the weight of the deemed expectations of the community would incline slightly against the Applicant. His offending against his own infant son was conduct completely at odds with community expectations. However, apart from the minor breaches of the FIVO, there has been no further offending, and that goes in favour of the Applicant.
This primary consideration weighs very marginally in favour of refusing the visa.
Other consideration: International non-refoulement obligations (paragraph 9.1)
The Direction states that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Both parties submitted that this is not relevant. If he is refused the visa, SHTD will be deported to Vietnam.
The Tribunal finds that this consideration weighs neutrally.
Other consideration: Extent of impediments if removed (paragraph 9.2)
The Direction requires decision-makers to consider the extent of impediments a non-citizen may face, if removed from Australia to his home country, in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the country. The Tribunal must consider the Applicant’s age and health, any substantial language or cultural barriers and social, medical, and/or economic support available to him if repatriated.
The Applicant is in good health. He has a good record of farm work in Australia. When asked whether this would be readily adaptable if he was returned to Vietnam, he said that farm practices in Vietnam are very different because most farmers have very small holdings which they work themselves. Nonetheless, the Tribunal considers that SHTD spent all of his childhood and some of his adulthood in Vietnam. He speaks the language fluently. He has two sisters and his father there who could provide some support and temporary accommodation, until he gets back on his feet. There is no evidence before me that SHTD would not have access to whatever entitlements a Vietnamese citizen has to social welfare or other government support.
The Tribunal finds that this consideration weighs neutrally in this assessment.
Other consideration: Impact on victims (paragraph 9.3)
The Tribunal interprets this part of the Direction as requiring some evidence of the impact on a victim of a non-citizen’s offending on a member of the Australian community in a case where the victim has knowledge of the migration implications for the non-citizen. There was no evidence before the Tribunal of any quantifiable impact on victims. Fortunately, LP was very young when the two incidents occurred; there is no evidence of any lasting impact on him.
The Tribunal finds that this consideration weighs neutrally.
Other consideration: Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia
The Tribunal must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely. The Tribunal must have regard to how long the Applicant has resided in Australia and his contribution to the Australian community.
SHTD has resided in Australia since 2009, apart from one return trip to Vietnam to see family. He has family (such as his uncle and aunt with whom he lives) in Australia and has developed strong links with the Buddhist temple that he attends in a Melbourne suburb. He has also forged friendships with other Australians, whose statutory declarations have been referred to earlier in these reasons.
The Tribunal finds that this sub-consideration weighs in favour of granting the visa.
Sub-consideration: Impact on Australian business interests
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501 would significantly compromise the delivery of a major project or important service in Australia.
SHTD has worked helping harvest strawberries and doing odd jobs on farms in Victoria. This is work that is not to everyone’s taste. The owner of the farm employment agency has provided a statement that he considers the Applicant to be a reliable worker. While there has been at least one period of unemployment (referred to by Mr Newton), I am satisfied that SHTD has established a record of work that is a positive contribution to Australia. I do not consider, however, that it rises to the level contemplated in this part of the Direction. I find that this sub-consideration weighs neutrally.
However, regarding this consideration overall, I find that this consideration weighs in favour of granting the visa.
SUMMATION - SHOULD THE VISA BE REFUSED?
Of the primary considerations in the Direction, those relating to the protection of the Australian community and family violence count against granting the visa. That relating to the best interests of affected minor children counts in favour of the grant, and relatively strongly so. The primary consideration relating to the expectations of the Australian community counts against the grant, but not determinatively.
In terms of the other considerations, the only one which is engaged is the links to the Australian community which counts in favour of SHTD.
It would appear to the Tribunal that some of the oral evidence of SHTD was tailored to support the contentions made by Mr Do in his submissions and in the ASFIC, that there had been some ‘entrapment’ of the Applicant by his former wife. The Tribunal completely rejects this, partly because it flies against the Applicant’s pleas of guilty for the conduct of which he was charged, and partly because it was at odds with SHTD’s own account to Ms Pham when he discussed the circumstances surrounding the bottle incident and the iPad incident in detail with her. Many of the assertions put to the Tribunal about Ms TN’s motivations and, for instance, her experience with her first husband, had no corroboration.
An oddity in this case is that – perhaps motivated by a desire to paint Ms TN as the villain of the piece, or a suggestion by his representatives that this was a good strategy, some of SHTD’s evidence at this hearing can be interpreted less favourably in terms of being satisfied he is remorseful, than his own more candid admissions both to the Court and to Ms Pham, and to some extent to Mr Newton.
Having made that observation, the Tribunal is inclined, weighing all the evidence and the overall conduct of SHTD since he has been living in Australia since 2009, to find that the discretion to refuse the visa should not be exercised. The Tribunal considers that the offending was isolated and driven by a young father being overwhelmed, having a wife who may or may not have been suffering from postnatal depression, but where the evidence supports a relationship that had become significantly strained after the birth of IP. But the Applicant was also clearly not being able to manage his temper. As I have said above, none of this excuses the conduct against LP. But I am satisfied this was not consistent with SHTD’s general demeanour or conduct, and his subsequent behaviour over several years reflects no continuing concern or likelihood of re-offending. I am also satisfied that he is remorseful for this isolated conduct – and the evidence supports that he was immediately so after the bottle incident occurred. As a separate observation, in terms of risk, it is also notable that there has been no attempt by the Department to take SHTD into detention, which gives some indication of the Respondent’s view of the level of potential harm.
Therefore, although the Tribunal has found that it is satisfied the Applicant does not pass the character test, it also finds that the preferable decision is that the discretion available in s 501(1) of the Act should not be exercised to refuse the visa.
DECISION
The Tribunal sets aside the decision dated 9 November 2022 to refuse the Applicant a Partner (Residence) (Class BS) (Subclass 801) visa. In its place, the Tribunal substitutes a decision that the discretion in s 501(1) of the Act should not be exercised to refuse the visa.
I certify that the preceding 176 (one hundred and seventy-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
........................[SGD]................................................
Associate
Dated: 6 February 2023
Date of hearing:
23 January 2023
Advocate for the Applicant:
Mr Quan Sy Do
Agents for the Applicant:
Endless ILA Pty Ltd
Advocate for the Respondent:
Mr Keith Sypott
Solicitors for the Respondent:
The Australian Government Solicitor
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