Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 2947
•19 August 2021
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947 (19 August 2021)
Division:GENERAL DIVISION
File Number: 2021/3515
Re:Na Khi Lac Thi Son
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:19 August 2021
Place:Perth
The decision of the delegate of the Minister dated 27 May 2021 not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Resident Return visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act) is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – s 501CA(4) of the Migration Act – decision of a delegate of the Respondent not to revoke the mandatory cancellation of the Applicant’s visa – Applicant fails the character test – Direction 90 considered – drug related offending – Applicant is a citizen of Vietnam – Applicant convicted of 28 offences between 2008 and 2015 – requirements for SFIC – Tribunal finds there is “another reason to revoke the mandatory cancellation” – reviewable decision set aside and substituted
LEGISLATION
Electronic Transactions Act 1999 (Cth) s 14A
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(1)(ba), 500(6B), 500(6H), 500(6J), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3), 501CA(4), 501CA(4)(b), 501CA(4)(b)(i), 501CA(4)(b)(ii)
Misuse of Drugs Act 1981 (WA) s 32A(1)
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
DOM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 862
FHHM v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
Filipovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 846
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; (2001) 111 FCR 378
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
Johnson and Commissioner of Patents [2020] AATA 3983
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
Nahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 209
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Paeu and Minister for Immigration and Citizenship [2011] AATA 792; (2011) 124 ALD 112
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Pavey and Minister for Home Affairs [2019] AATA 4198
Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5165
QJTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 609
Russell v Minister for Home Affairs [2019] FCAFC 110; (2019) 275 FCR 334
SCJD and Minister for Home Affairs [2018] AATA 4020
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545
Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203
Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545
SECONDARY MATERIALS
Convention on the Rights of the Child, opened for signature 2 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) preamble, art 3
Department of Health, National Drug Strategy 2017–2026 (18 September 2017)
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018) para 14.4
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021) paras 4(1)5.1, 5.1(3), 5.2, 6, 7, 8, 8.1, 8.1.1, 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3, 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 9, 9(1)(c), 9.1, 9.2, 9.3, 9.3(1), 9.4, 9.4.1, 9.4.2
REASONS FOR DECISION
Deputy President Boyle
19 August 2021
THE APPLICATION
The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 27 May 2021 not to revoke the cancellation of the Applicant's Class BB Subclass 155 Resident Return visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
The Applicant’s visa was cancelled under s 501(3A) of the Act on the basis that she did not pass the character test by reason of her substantial criminal record and she was serving a full-time term of imprisonment for an offence against a law of a State.
THE ISSUE
The issue for determination is whether the Tribunal should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the visa made under s 501(3A). This will require determination of:
(a)whether the Applicant passes the character test (as defined by s 501 of the Act); and
(b)if she does not pass the character test, whether there is a “another reason” why the mandatory cancellation decision should be revoked.[1]
[1] The Act s 501CA(4)(b)(ii).
BACKGROUND
The following facts are taken primarily from the Applicant’s Statement of Facts, Issues and Contentions dated 2 July 2021 (Applicant’s SFIC) and the Minister’s Statement of Facts, Issues and Contentions dated 23 July 2021 (Minister’s SFIC) and are not contentious.
The Applicant is a 40-year-old citizen of Vietnam. She came to Australia as a refugee in 1995 as a 14-year-old. She has 28 criminal convictions between 2008 and 2015. She has been in custody since her arrest on 15 October 2015. The Applicant’s criminal record, as disclosed by the National Police Certificate, is as follows:[2]
[2] R1, G7.
Court
Result Date
Offence
Result
Perth District Court of Western Australia
9 February 2018
Possession of a prohibited drug with intent to sell or supply (methylamphetamine)
Drug trafficker declaration; two years’ imprisonment (cumulative) from 15 October 2015; destruction order: drugs and drug paraphernalia
Possession of prohibited drugs with intent to sell or supply (heroin)
Drug trafficker declaration; five years and six months’ imprisonment (concurrent) from 15 October 2015; destruction order: drugs and drug paraphernalia
Possession of stolen or unlawfully obtained property
Eight months’ imprisonment (concurrent) from 15 October 2015; destruction order: drugs and drug paraphernalia
Perth Magistrates Court
28 July 2017
Possess drug paraphernalia containing prohibited drug/ plant
$400 fine
Joondalup Magistrates Court
2 January 2015
Possess a prohibited drug (methylamphetamine)
$500 fine (global)
Possessed drug paraphernalia in or on which there was a prohibited drug or plant
$500 fine (global)
Perth Magistrates Court
28 April 2011
Possess a prohibited drug (MDMA)
$50 fine (global)
Possess a prohibited drug (heroin)
$50 fine (global)
Perth Magistrates Court
18 October 2010
Person who breaches CRO/COM order without reasonable excuse
$500 fine (global)
Person who breaches CRO/COM order without reasonable excuse
$500 fine (global)
Breach of community-based order
Four months’ imprisonment (concurrent) from 18 October 2010
Possess a prohibited drug (heroin)
$250 fine
Possess a smoking utensil used for smoking prohibited drug
$500 fine (global)
Possess a prohibited drug (amphetamine)
$500 fine (global)
Used a prohibited drug (heroin)
$500 fine (global)
Breach of community-based order
$500 fine (global)
Breach of community-based order
$500 fine (global)
Person who breaches CRO/COM order without reasonable excuse
$500 fine (global)
Perth District Court of Western Australia
5 October 2010
Possession of a prohibited drug with intent to sell or supply (methylamphetamine)
Two years and eight months’ imprisonment from 2 July 2010
Possession of a prohibited drug with intent to sell or supply (heroin)
Two years and eight months’ imprisonment (concurrent) from 2 July 2010; court order: declared a drug trafficker and destruction of drugs and drug-related materials
Joondalup Magistrates Court
14 November 2008
Possess a smoking utensil
Community-based order of 12 months (supervision)
Possess a prohibited drug (MDMA)
Community-based order of 12 months (supervision)
Possession of a prohibited drug with intent to sell or supply (methylamphetamine)
Community-based order of 12 months (supervision)
12 September 2008
Possess a smoking utensil
$200 fine
Possess a prohibited drug (heroin)
$300 fine
Midland Magistrates Court
8 April 2008
Possessing stolen or unlawfully obtained property
$1,000 fine (global)
Possess a prohibited drug (heroin)
$1,000 fine (global)
Perth Court of Petty Sessions
9 April 2001
No motor driver’s licence – under suspension
$400 fine; motor driver’s licence cancellation and disqualification for nine months (cumulative)
Following earlier convictions, in 2011 the Department of Immigration and Citizenship considered cancelling the Applicant’s visa. By letter dated 13 July 2011, the Department advised the Applicant that her visa would not be cancelled at that time, but warned the Applicant that if she were to commit further offences, reconsideration may be given to cancelling her visa.[3]
[3] R1, G34/223.
As a result of her convictions on 9 February 2018 for possession of methylamphetamine and possession of heroin with intent to sell or supply and the terms of imprisonment imposed therefor (see [5] above), the Applicant’s visa was cancelled under s 501(3A) of the Act.
The Applicant was notified of the decision to cancel her visa by letter dated 28 November 2019 and was invited, under s 501CA(3) of the Act, to make representations to the Minister about revoking the decision to cancel her visa.[4]
[4] R1, G38.
In response to the invitation to make submissions about revoking the decision to cancel her visa, the Applicant by “Request for Revocation of Mandatory Visa Cancellation under s 501(3A)” dated 13 December 2019, made representations to the Minister.[5]
[5] R1, G12.
By decision dated 27 May 2021 a delegate of the Minister made the decision that there was not another reason why the decision to cancel the visa should be revoked and that accordingly, the power under s 501CA(4) is not enlivened.[6]
[6] R1, G4.
On 31 May 2021 this application was lodged with the Tribunal.
I am satisfied that the Applicant made representations about the revocation of the cancellation of her visa in accordance with the invitation to do so issued under s 501CA(3) of the Act (see [8] above) and that the application was lodged with the Tribunal within nine days of the Applicant being notified of the delegate’s decision not to revoke the cancellation of the visa.[7] The delegate’s decision not to revoke the cancellation of the visa comes within the purview of s 500(1)(ba) of the Act. I am satisfied that the Tribunal has jurisdiction to review the decision.
[7] The Act s 500(6B).
THE HEARING AND THE EVIDENCE
The application was heard on 9 and 11 August 2021. The Applicant was represented by Ms J Edis of Putt Legal and the Minister was represented by Mr L Dennis of MinterEllison. The following documents were admitted into evidence:
(a)Applicant’s documents received by the Tribunal 16 July 2021 (A1);
(b)Applicant’s supplementary documents received by the Tribunal 30 July 2021 (A2);
(c)Section 501G Documents (R1); and
(d)Supplementary G documents (R2).
The following witnesses gave evidence at the hearing:
(a)The Applicant;
(b)Thi Bopha Thach (the Applicant’s mother);
(c)Hue Nhi Tran (the Applicant’s adult daughter); and
(d)Linda Son (the Applicant’s sister).
On 30 July 2021 the Applicant’s lawyer lodged with the Tribunal submissions in reply to the Minister’s SFIC and further supporting material, including a statement by the Applicant’s father. These submissions and supporting evidence were attachments to an email which was copied to the Minister’s lawyers. Unfortunately, for technical reasons, while two of the three attachments to the email found their way to Mr Dennis, the attachment comprising the additional material was blocked. Mr Dennis did not become aware of this until 6 August 2021, being the Friday before the first day of the hearing on the following Monday.
This raised issues as to whether the additional material had been “given to the Minister at least 2 clear days before the Tribunal [was to hold] a hearing”.[8] Section 500(6H) relevantly provides that:
the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing…
and s 500(6J) relevantly provides that:
the Tribunal must not have regard to any document submitted in support of the person's case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing…
[8] The Act ss 500(6H), 500(6J).
After the luncheon adjournment on 9 August 2021, Mr Dennis advised that his further enquiries indicated that the relevant attachment had been blocked by a security firewall in his firm which had treated the attachment as suspicious.[9] If that was the case, then the question is whether the documents in the attachment had been provided at least two business days before the hearing on 9 August 2021.
[9] transcript at 108.
Section 14A of the Electronic Transactions Act 1999 (Cth) (ET Act) relevantly provides:
(1)For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:
(a)the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; …
I do not understand the Minister to dispute that the email address to which the email and the attachments were sent on 30 July 2021 was the correct address for the provision of documents in relation to the application. The fact that, apparently, the Minister’s lawyer’s internet security software identified one of the attachments as suspicious and quarantined it does not mean that it was not “capable of being retrieved”. The attachment was, therefore by operation of s 14A of the ET Act “given” to the Minister on 30 July 2021.
The circumstances of the 30 July 2021 email and attachments are distinguishable from those that the Full Court considered in Russell v Minister for Home Affairs.[10] Relevantly, the Full Court in Russell found that service under the ET Act had not been affected, not because the electronic communication was not capable of being retrieved per se, but because the communication had not been received at the designated address. It had “bounced back” because it was too big for the addressee’s electronic mailbox. That was not the case in the present matter. In the present case, or at least how it appears from Mr Dennis’ advice at the hearing,[11] the attachment had been transmitted to the Minister’s lawyers’ server, and had simply been quarantined.
[10] [2019] FCAFC 110; (2019) 275 FCR 334.
[11] transcript at 108.
The issue of whether the material in question was or was not “given to the Minister” on 30 July 2021 became somewhat academic because at the conclusion of the examination of the witnesses on 9 August 2021, the hearing was adjourned to 11 August 2021. On 11 August 2021 the material in question was admitted into evidence and the parties made their closing submissions. Accordingly, even if the material in question was not received by the Minister’s lawyers until 6 August 2021, by the time of the resumed hearing on 11 August 2021 and the admission of the material into evidence, the material in question had been given to the Minister not less than two business days before the resumed hearing. For the purposes of ss 500(6H) and 500(6J) of the Act, each day of the hearing is to be treated as a separate hearing: Uelese v Minister for Immigration and Border Protection[12] at [113]–[115].
[12] [2015] HCA 15; (2015) 256 CLR 203.
The intent of s 500(6H), to provide the Minister with sufficient notice to “properly answer the applicant’s case”[13] and to “…avoid manipulation of the system of review by an applicant for the purpose of delaying prospective deportation”[14] was also satisfied by that course: See also Goldie v Minister for Immigration and Multicultural Affairs[15] at 389–390 and Uelese at [72]–[74].
[13] DOM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 862 at [45].
[14] DOM19 at [44].
[15] [2001] FCA 1318; (2001) 111 FCR 378.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)...; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) …
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
…
Section 501CA of the Act provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(4)The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(Original emphasis.)
Ministerial Direction 90
Section 499(1) of the Act provides that:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Section 499(2A) of the Act provides that:
[a] person or body must comply with a direction under subsection (1).
On 8 March 2021 the Minister, being the relevant Minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90). The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).
Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:
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 fulltime 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 their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA. These principles are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are applicable) in order to determine whether the mandatory cancellation of the visa should be revoked.
Paragraph 8 of Direction 90 sets out the primary considerations to be taken into account in making a decision under s 501CA(4) of the Act. They are:
(1) protection of the Australian community;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
Paragraph 9 of Direction 90 sets out “other considerations” that the decision-maker must take into account and relevantly provides that:
(1) In making a decision under section ... 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a) international non-refoulement obligations;
(b) extent of impediments if removed;
(c) impact on victims;
(d) links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[16] The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) (see [24] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more…” That is so in the Applicant’s case.
[16] [2009] AATA 47; (2009) 106 ALD 66.
The Applicant does not pass the character test. The Applicant, therefore, cannot rely on s 501CA(4)(b)(i) for the decision to cancel her visa to be revoked. The issue is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked (see [25] above).
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 90 provides that when decision-makers are considering the protection of the Australian community, they:
(1)... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 90 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The parties’ submissions
The Applicant
The Applicant accepts that she has a substantial criminal record[17] and that her conduct constitutes criminal offending of a very serious nature which is reflected in the penalties imposed by the Court.[18]
[17] Applicant’s SFIC para 21.
[18] Applicant’s SFIC para 23.
The Applicant’s offending directly relates to her drug addiction which commenced in her mid-20s and was the result of her personal circumstances. These involved her being the victim of domestic violence and her suffering from depression and unresolved childhood trauma. She used drugs as a coping mechanism and sold drugs to fund her addiction.[19]
[19] Applicant’s SFIC para 24.
The Minister
The Applicant's drug offences should be considered to be serious. The Tribunal has recognised the seriousness of crimes associated with drug supply, and the significant harm it inflicts on the Australian community.[20]
[20] Citing Paeu and Minister for Immigration and Citizenship [2011] AATA 792 at [40] per SM Taylor; SCJD and Minister for Home Affairs [2018] AATA 4020 (SCJD) at [81]–[83].
The serious nature of the Applicant's drug offending is further demonstrated by the substantial period of imprisonment imposed for these offences.[21]
[21] Citing Pavey and Minister for Home Affairs [2019] AATA 4198.
The sentencing judges recognised the seriousness of the Applicant's offending. In particular, on 9 February 2018 the sentencing judge acknowledged that the Applicant's offending was “serious”, that the Applicant had a “significant criminal history” and declared the Applicant to be a drug trafficker.
The Applicant's criminal history demonstrates that she has committed offences with escalating seriousness.
The Applicant reoffended after being warned by the Department of the consequences of her actions on 26 June 2011.[22]
[22] The Tribunal notes that the document to which the Minister’s SFIC refers (R1, G34) is dated 13 July 2011, and makes no reference to 26 June 2011.
Applicant’s reply
In response to the Minister pointing to the Applicant being declared a drug trafficker, the Applicant noted that a person being declared a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA) operates automatically on the conviction and is not a separate determination and does not add to the seriousness of the offence.
Consideration
The Applicant has a serious criminal record. The Applicant accepts that is the case. She has been convicted of 28 offences in an eight-year period (see [5] above). Of those 28 offences, the most serious are:
(a)the two convictions in 2010 for possession of prohibited drugs (methylamphetamine and heroin) with intent to sell or supply, for which the Applicant received prison sentences of two years and eight months on each count (concurrent); and
(b)the two convictions in 2018 for possession of prohibited drugs (methylamphetamine and heroin) with intent to sell or supply for which she received prison sentences of five years and six months and 16 months (concurrent).
The circumstances of these offences were set out in the judges’ sentencing comments. In relation to the 2010 convictions, Martino CJDC said:
The maximum penalty for each offence is a fine of $100,000 or 25 years' imprisonment, or both. The facts of the offences are that on 2 June 2008 police officers executed a search warrant at the home you were living in, and they found a total of 43.54 grams of methylamphetamine. Most of that methylamphetamine ranged in purity from approximately 29 per cent to approximately 45 per cent. The police officers also found 23.81 grams of heroin which ranged in purity from 46 per cent to 67 per cent.
At the time of the offences you were addicted to both of the drugs. In the case of the methylamphetamine, you intended to use some. You intended to distribute some to others who were living in the house with you, and you intended to sell some to finance your addiction. In the case of the heroin, you intended to use some and to sell some.
You pleaded not guilty when you were charged with these offences, and they were listed for trial in August of last year, and you did not attend the trial. Earlier this year you pleaded guilty to the charges and so your pleas of guilty are late pleas of guilty, but they still show that you've accepted responsibility for your offending behaviour, and you've assisted the course of justice and for those reasons I have reduced the sentence that I would have otherwise imposed if you'd gone to trial.
…
The offences that you've committed are very serious crimes. These drugs cause great damage to the community, to people who use the drugs, to victims of crime committed by people who use the drugs, and to the families of both the users and the victims.[23]
[23] R1, G10/52–53.
In sentencing the Applicant for her convictions in 2018, Levy DCJ made the following comments:
… Now, you’ve pleaded guilty before me to four separate offences all of which were committed on 15 October 2015 at Marangaroo. They are:
Count 1, possession of methylamphetamine with intent to sell or supply to another relating to 40.1 grams of methylamphetamine found in the laundry. And the purity of that methylamphetamine was somewhere between 84 and 87 per cent pure.
Count 2 relates to the possession of methylamphetamine with intent to sell or supply being 9.82 grams at a purity of up to 91 per cent. That, as I say, was originally part of the first charge but separated to reflect that some of the methylamphetamine was found in the laundry and some was found in the Audi.
Count 3 is possession of heroin with intent to sell or supply to another. And that relates to the heroin found in the spare room of your premises. And it’s 303.3 grams at a purity of somewhere between 73 and 76 per cent.
Count 4 relates to the possession of money reasonably suspected to have been unlawfully obtained. And It’s the sum of $56,450.
…
Now, the facts read by Ms Colborne, on behalf of the State, don’t need to be repeated, they’re accepted by you. You accepted not only the facts today but I note that when the police attended and executed the search warrant you cooperated with the police during that search. You made full admissions during that search to your involvement in these offences.
…
… I’ve told you the maximum penalty. I’ve got to take into account the circumstances of the offence and it’s submitted on your behalf and it seems accepted by the State that you were a - what’s called a user/dealer.
You were not just a street level in my view, however. Your culpability is higher than that. I form that view because of the quantities of the drugs involved, the amount of money that you were paying for the drugs, the tick lists or the lists of people that still owed you money, the scales and what you told the police about your involvement.
…
… From what I have read in the pre-sentence report and what’s been said to me today by Mr Rodgers on your behalf, you’ve had a problem with drugs for a very, very long time.
…
This is therefore the third time you come before a court to be dealt with for possession of a prohibited drug with intent to sell or supply it to another. On this occasion it’s a much larger quantity of drugs than on the previous occasion.
It seems to me that the previous prison sentences have had little deterrent effect upon you. Your criminal history is also littered with other drug offences consistent with you being a drug user. Although you have previously done some rehabilitation program in prison it seems to have had little impact upon you.
You were released from prison last in March 2013. According to you, you remained abstinent from drugs until late 2014 when a combination of factors, including outstanding debts, saw you committing these offences.
It seems to me that you have very little insight into your own behaviour and the very terrible impact that these sorts of offences have on the community.
…
In my view, you were frank and open with the police when you spoke to them and you did provide them with information that will be of assistance in the future in any event, in the very least in relation to the database that the Organised Crime Squad keeps with respect to the prices and values of drugs.[24]
[24] R1, G8/41–45.
While the possession of drugs with intent to sell or supply are the most serious of the Applicant’s offences, the other offences of which she has been convicted are not insignificant, both in their nature and number. As Levy DCJ noted, the Applicant’s “criminal history is also littered with other drug offences consistent with [her] being a drug user” (see [49] above).
In assessing the seriousness of the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 90, I find that:
(a)(Paragraph 8.1.1(1)(a)) – the offences of which the Applicant has been convicted were not of a violent or sexual nature.
(b)(Paragraph 8.1.1(1)(b)) – the Applicant’s conduct was not of the type described in this consideration.
(c)(Paragraph 8.1.1(1)(c)) – the sentences imposed, particularly for the possession of prohibited drugs with intent to sell or supply, were significant and towards the mid-range of the scale for those offences.
(d)(Paragraph 8.1.1(1)(d)) – the Applicant has been convicted of 28 offences, many very serious, over the relatively short period from April 2008 to October 2015 (with the exception of the driving offence in 2001). The offending has therefore been frequent. It is also the case, as noted in sentencing by Levy DCJ, that the last offence involved a much larger quantity of drugs than on the previous occasions. In that sense, there is a trend of increasing seriousness although, again as noted by Levy DCJ, there was also a period of non-offending from around 2011 to 2015 during which the Applicant remained abstinent from drugs.
(e)(Paragraph 8.1.1(1)(e)) – it is difficult to assess the “cumulative effect” of the Applicant’s offending. It is the case that there was a large number of offences committed over a relatively short period, however, as Levy DCJ noted, the offences committed by the Applicant were “drug offences consistent with [the Applicant] being a drug user”. In one sense then the cumulative effect is that the offences are, unfortunately, typical of a drug addict which, on her own admission, is what the Applicant was during that period.
(f)(Paragraph 8.1.1(1)(f)) – Although incoming passenger cards were included in the G documents,[25] no submissions were made by the Minister in respect of this consideration and the Applicant was not cross-examined on this issue. As far as I can determine this consideration is not relevant in this case.
(g)(Paragraph 8.1.1(1)(g) – The Applicant did receive a warning in 2011. Her evidence was that, although she signed an acknowledgment of receipt of the warning,[26] she did not appreciate the significance of it.[27] This was partly the result of her not having good English and simply not appreciating how close she was at that time to losing her visa. Ms Edis in closing also pointed to the process being different in 2011 to today’s process. In 2011 the warning letter followed correspondence from the Department that it was “considering” cancelling the Applicant’s visa. The Applicant’s primary focus was on the advice in the letter of 13 July 2011 that her visa had not been cancelled rather than on the warning. The process that has followed the cancellation of her visa has left the Applicant in no doubt about the seriousness of the position in which she now finds herself. The fact is, however, that the Applicant did receive a formal warning from the Department and seriously reoffended thereafter. That is a matter that I must take into account.
[25] R1, G35/226–227.
[26] R1, G34/225.
[27] transcript at 49–50.
I am satisfied that the Applicant’s offending was very serious. That was made clear by the sentencing judges’ comments and the sentences imposed.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 90 relevantly provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, 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. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or serious conduct; and
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
The Tribunal in CZCV and Minister for Home Affairs[28] summarised the task for the Tribunal as follows at [56]:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[28] [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated, at [68]:
... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.
While the Tribunal and the Court in the above cases (and in the cases referred to therein) were considering visa cancellation in the context of predecessors to Direction 90, given the similarity in the wording of the several Ministerial Directions, the same considerations and principles apply to the present case. I adopt the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The Applicant says that she recognises that the nature of the harm that would be caused by her committing similar offending in future is serious, and that she is ashamed of her past behaviour and her repeated disregard for Australian laws.[29] She admits that her conduct was selfish and that she did not turn her mind to the wider implications of her involvement in the sell and supply of drugs.
[29] Applicant’s SFIC para 26.
The Minister submits that if the Applicant were to reoffend it would potentially cause significant physical, psychological and financial harm to members of the Australian community. These impacts were identified by the sentencing judges. In sentencing the Applicant in 2018, the judge noted that the Applicant had little insight into her behaviour and the “very terrible impact that these sorts of offences have on the community”.
The nature of the harm to individuals and to the community if the Applicant were to engage in the criminal behaviour which she has in the past, is self-evident and serious. Some of the possible consequences to the community, and individuals within the community, were identified by Levy DCJ in his sentencing remarks (see [48] above). Australia's National Drug Strategy 2017–2026[30] notes that the Australian community faces both direct and indirect harm from drugs, including mental health trauma, violence or other crimes, engagement with the criminal justice system more broadly, and healthcare and law enforcement costs.[31]
[30] Department of Health, National Drug Strategy 2017–2026 (18 September 2017).
[31] Department of Health, National Drug Strategy 2017–2026 (18 September 2017), 4.
The Applicant recognises that the nature of the harm that would be caused by her committing similar offences in future is serious. She admits that her conduct was selfish and that she did not turn her mind to the wider implications of her involvement in the use, sale and supply of drugs.[32]
[32] Applicant’s SFIC para 26.
I find that the nature of the harm that would be caused to the community if the Applicant were to reoffend would be serious, not only to individuals in the community, but also to the community as a whole.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (8.1.2(2)(b))
The parties’ submissions
The Applicant
During the five and a half years that she has spent in prison for her most recent offences, the Applicant has gained an insight into the damaging consequences of her actions on the community at large, as well as on her family (her children in particular). She is no longer the same person as the individual who entered custody on 15 October 2015.[33]
[33] Applicant’s SFIC para 27.
The risk of the Applicant reoffending is significantly lowered by the following:
(a)She has been in prison on this occasion for twice as long as previously. She now finds herself in immigration detention facing permanent deportation. The almost six years she has spent away from her family has taken a heavy toll on both the Applicant’s physical and mental health. She has entirely changed her perspective on her life and what is important to her. She is motivated to make amends with her family, and she is aware that her children have suffered greatly because of her conduct. Her youngest daughter had not yet turned one when the Applicant was taken into custody. She does not want to disappoint them again.
(b)The Applicant was diagnosed with thyroid cancer in 2019 which led to a total thyroidectomy. She is required to take daily thyroid medication for the remainder of her life. This resulted in an epiphany about the fragility and value of life. The diagnosis served as a further prompt to re-evaluate her priorities and acknowledge how reckless she had been in the past. She wishes to focus on being the best mother, sister and daughter she can be.
(c)The Applicant is the eldest of five children and shares a close bond with her family who migrated to Australia from Vietnam on a protection visa. She cannot imagine being separated from them. She understands that should her visa be reinstated, she will not be afforded another chance. She has an overwhelming disincentive from engaging in future criminal conduct.
(d)She completed a 100-hour rehabilitation course, namely, the Pathways Program, and a range of general education courses. She also applied to be transferred to Wandoo Rehabilitation Prison a number of times.
(e)The Applicant has been described by prison staff as “polite, compliant and [as someone who] adheres to the prison rules and regulations”. She held various employment positions with progressing skill levels and gratuities. Prison staff described the Applicant as “a very good worker with good work ethic” as well as “reliable”, “trustworthy” and “able to interact well with other staff and peers”.[34]
(f)She is now willing to seek assistance from family members and outside support. To this end, on 17 February 2021 she commenced counselling sessions through the Allied Drug & Alcohol Program 7 Counselling facilitated by Holyoake. She has continued her sessions via telephone since transferring to Perth Immigration Detention Centre and wishes to continue if she is released. Her counsellor, Ms Saenger, advises that:
Ms Son is enthusiastic at her counselling sessions, open to learning new ways to cope with emotional situations. We have explored, stage of change, boundaries, structure, goal setting, the link to her substance use, high risk situations, triggers and strategies.
(g)The Applicant’s participation in rehabilitation programs and counselling is mandated by her parole order, as is the requirement to attend random urinalysis for all illicit substances. This will ensure that the Applicant will continue her treatment and offer protection to the community at large.
(h)The Applicant did receive a warning from the Department in 2011 about the effect that reoffending would have on her visa. At that time she did not appreciate the warning, however, the mandatory visa cancellation has been an extremely distressing experience for her. She is now fully aware that there will be no more chances and well understands the consequences she would face if she were to reoffend. She is not prepared to jeopardise her future in Australia again.
(i)She now understands that she can turn to her family for support rather than using drugs as a coping mechanism. She has had strong support in her family; they have rallied together to help her. They want what is best for her and her children. They will be able to provide for her upon her release from detention, so she can take her time to settle back into society and “normal life”. She will live with her mother and her children if she is released into the community.
(j)She will have secure employment in the family business (a market garden).
[34] Citing R1, G29/205.
The Minister
While the Applicant had shown remorse and engaged in rehabilitation, there is, nevertheless, a risk that she will reoffend. Levy DCJ found that the Applicant's previous prison sentences had “little deterrent effect” and her rehabilitation efforts had “little impact”.[35]
[35] Citing R1, G8/44.
In March 2021 the Applicant was granted parole. The parole order was subject to particular conditions and was granted on the basis that her release “does not pose an unacceptable risk to the safety of the community”. The parole order was made in a different context and with a different focus. The Minister contends that the parole order should not be relied upon to conclude that the cancellation should be revoked, particularly considering the Applicant's criminal history and the risks identified by the sentencing judge on 9 February 2018.
Applicant’s reply
In relation to the sentencing judge’s comment cited by the Minister, the Applicant says that those comments were made over three years ago and are not indicative of the Applicant’s current state of mind. She has since then undertaken programs and developed insights into her offending.
In relation to the Applicant being granted parole, although the criteria applied by the Prisoners Review Board are not the same as those to be applied by the Tribunal, the fact that parole was granted is a relevant consideration.
Consideration
The factors that weigh against the Applicant in this consideration are those identified by the Minister. The most obvious of these is the frequency and rapidity of the Applicant’s offending and the fact that previous sanctions imposed by the courts have not prevented the Applicant from continuing to offend. As was noted by Derrington J in Zyambov Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[36] at [26]:
… Mr Zyambo had an extraordinarily lengthy criminal history which was characterised by relapses into drug use, crime and periods of imprisonment. Although there were some periods of abstinence, Mr Zyambo was prepared to engage in further criminal offending even after warnings that his visa might be revoked were he to do so. On issues of this nature, it can generally be observed that what has occurred in the past is likely to be a reliable guide as to what will happen in the future…
[36] [2021] FCA 545.
Another obvious factor weighing against the Applicant in considering the likelihood of her reoffending, is the fact that in 2011 she received a formal warning from the Department about the consequences that could flow if she were to reoffend. Notwithstanding that, she reoffended in the way that she had in the past. In my view, however, the difference between an offender like Mr Zyambo and the Applicant, is that the Applicant’s offences, although serious and multiple, fall into the category described by Levy J in his sentencing remarks, namely “offences consistent with [her] being a drug user”. Unlike Mr Zyambo, whose 89 offences spanned a range of serious criminal activity including possession of weapons, possession and trafficking/supply of drugs, property offences, fraud, unlawful use of a motor vehicle, stealing, six counts of unlawful entry of a vehicle and breaches of bail, the Applicant’s offences all seem to be related to her drug addiction and were committed over two relatively short periods during which she was in a toxic domestic relationship and addicted to drugs. As the Applicant’s counsel submitted, while those circumstances are not a justification for her offending, they do give context to her offending. A possible characterisation of the Applicant is that she was weak and vulnerable and made bad choices when in an unhealthy environment, rather than a person who has freely chosen a life of crime.
The Applicant presented as someone who was genuinely remorseful for her criminal past, and now appreciates what will happen if she reoffends. On my assessment the last five and a half years in gaol and detention have caused the Applicant to take stock of her life and she is now painfully aware of what she will lose if she were to reoffend. I accept that she now appreciates that she would lose everything dear to her and meaningful in her life, in particular her children and her family.
She has, during the period of her most recent incarceration, undertaken courses to address her drug addiction and assist her in making correct choices. After what might be seen as initially a questionable embrace of those courses, she has completed the Pathways Program and has taken steps to continue her counselling in detention and in the community if released. While in prison she has also demonstrated an ability to work productively and willingly.[37]
[37] See Individual Work Plan, R1, G29/205.
The other development that appears to have occurred through the counselling that she has received during her most recent term of imprisonment, is the identification of the unresolved sexual abuse that she suffered as a child and the role that that has played in her offending behaviour.[38]
[38] Pathways Program Completion Report, S23/92.
I am satisfied that the environment into which the Applicant will go if she is released back into the community will be significantly different to the one that she was in when she offended. Her partner of that time, with whom she dealt drugs, is still in prison.[39] She has cut all ties with the people with whom she associated when she was using drugs and offending.[40]
[39] transcript at 70.
[40] Applicant’s witness statement, A1.
Her mother and other family members gave evidence and provided statement to the effect that they would do all that they could to support the Applicant if she were to be released back into the community. She would live with her mother and her children in her mother’s house along with other siblings of the Applicant. In her statement,[41] the Applicant’s mother confirms that the Applicant and her children would live with her (there are currently nine family members living in the house, including three of the Applicant’s children) and observes that having the Applicant living with them would assist her as she is not in good health.[42] The Applicant’s brother, who works in the family market garden business, advised in his statement that the Applicant would be offered employment in the business.[43]
[41] A1/32.
[42] A1/32 paras 26–34.
[43] R1, G26/193.
I am satisfied that this much more positive and stable environment, surrounded by a loving and caring family into which she would be released, together with the normality of regular employment in the family business, will provide increased protection against the Applicant returning to drug use and crime. The Applicant’s attitude to accepting help and support from her family has changed. She now recognises the role that such support and help can provide in her establishing a normal and productive life and future for her and her children. Most significantly, however, the Applicant is now painfully aware of what she has to lose if she reoffends.
Another circumstance that will, in my view, reduce the likelihood of the Applicant reoffending is that, if she is released into the community, she will be subject to the terms of the parole order up until April 2023.[44] Those terms include continued participation in rehabilitation programs and counselling and random urinalysis for all illicit substances. While this further incentive against reoffending will cease to operate after April 2023, the fact that she will be required to continue her treatment and will be subject to drug testing up to that time will be further incentive for the Applicant to establish and maintain a law-abiding lifestyle.
[44] R1, G31/216.
Taking all of these factors into account, I assess the likelihood of the Applicant reoffending as low.
While the consequences to the community, or a member of the community, if the Applicant were to reoffend could be significant, the likelihood of the Applicant engaging in further criminal conduct is sufficiently low to make the risk not an unacceptable one.
Because of the seriousness of the Applicant’s offending and the potential harm that would result if the Applicant were to deal in drugs again, this first primary consideration, the protection of the Australian community, must weigh against the revocation of the cancellation of the Applicant’s visa. However, because the risk of the Applicant engaging in criminal conduct of the sort that she has in the past is so low, minor weight should be given to this consideration.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
The Minister concedes that the crimes for which the Applicant has been convicted do not involve family violence, as that term is defined in para 4(1) of Direction 90, and that there is no evidence that the Applicant has been involved in family violence. The Minister says that this consideration is not relevant. I agree.
Third primary consideration: The best interests of minor children in Australia (para 8.3)
Paragraph 8.3 of Direction 90 provides:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to ... not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The parties’ submissions
The Applicant
The Applicant has three biological children under the age of 18 years, each of whom is an Australian citizen living in Perth. Two of them are currently in the care of the Applicant’s youngest sister, Linda Son. These children have no contact with their biological father, with the Applicant being the only parent present in their lives.
Despite the Applicant’s time in custody and now detention, she continues to maintain a close relationship with each of her children via regular personal visits (prior to COVID-19), daily telephone calls and some mail.
The statutory declaration of the Applicant’s sister, Linda, sets out the struggles that these children face in her absence.[45] They are supportive of her and want her in their lives.
[45] Citing R1, G25/187.
Re-establishing a connection with them and being a constant physical presence in their lives is her main priority.
The Minister
The Minister accepts that it would be in the best interests of these minor children for the cancellation of the Applicant's visa to be revoked. However, the Minister contends that this factor should be given less weight as the Applicant's offending has resulted in long periods of absence where the Applicant's children were cared for by others.
The Applicant's extensive criminal history and any reoffending is likely to have a negative impact on the Applicant's children and undermine her ability to play a positive parenting role.
The Applicant has spent considerable time away from her children and they would be able to accompany her to Vietnam and/or maintain contact via various communication tools and social media.
The Applicant's eldest minor child is in the care of his biological father. The Applicant's two youngest children are estranged from their biological father, however, they have been in the care of the Applicant's sister.
If the Applicant were to reoffend, there is a risk that her children would be victims of neglect.
Consideration
The Applicant identified three minor children as being relevant to this consideration, being her three children. While her sister who looks after two of the Applicant’s children also has a child, the Applicant conceded that she has no relevant relationship with that child, and that that child is not relevant to this consideration. In closing Ms Edis confirmed that to be the case.[46]
[46] transcript at 144.
The Applicant’s three relevant children are aged 13, 11 and six years of age. The oldest child, a boy, lives with his father and his father’s partner. That child has regular contact with his siblings who live with the Applicant’s mother and who are cared for by the Applicant’s mother and sister.[47]
[47] Applicant’s sister’s statements A1/21–31; Applicant’s sister’s evidence, transcript at 101–106.
The Applicant’s evidence and that of her sister and her mother was to the effect that the three children have very regular and frequent contact with their mother. I accept that, notwithstanding the extended separation from the children due to the Applicant’s incarceration, they remain close.
In relation to the factors identified in Direction 90:
(a)(Paragraph 8.3(4)(a)) – as noted above, on the basis of the Applicant’s evidence and that of her family members, the nature of the relationship between the Applicant and her children appears to be close. There have been periods of physical separation due to the Applicant’s incarceration, however, the Applicant has maintained what would appear to be regular and meaningful contact during these periods.
(b)(Paragraph 8.3(4)(b)) – the degree to which the Applicant would play a positive role will be dependent on whether the Applicant refrains from reoffending. There is nothing to indicate that the Applicant would not be a positive influence on her children. She obviously loves her children and has committed to redressing the harm that has been caused, including the harm to the children, by her offending. As I have assessed the likelihood of the Applicant reoffending as being low, there is no reason to think that she would not play a positive role in her children’s lives.
(c)(Paragraph 8.3(4)(c)) – obviously if the Applicant were to reoffend and be returned to prison or be removed from Australia, that would have a detrimental impact on the children, however, I have assessed the likelihood of that happening as low. Insofar as her prior conduct is concerned, the Applicant’s sister’s evidence was that the Applicant’s offending and the fact that she was in prison has not been disclosed to the youngest child. There is no evidence as to what direct impact, if any, the Applicant’s offending history has had on her children. The most significant impact would have been her absence from her children’s lives as a result of her incarceration.
(d)(Paragraph 8.3(4)(d)) – the evidence of the Applicant, the Applicant’s sister, the Applicant’s oldest daughter (who gave a written statement and gave evidence at the hearing) and the Applicant’s mother was that separation has already had a significant impact on the Applicant’s children. There is no reason to think that that would not continue to be the case if the Applicant were to continue to be separated from her children.
(e)(Paragraph 8.3(4)(e)) – the Applicant’s oldest child lives with his father and his father’s partner. I assume that they fulfil a parenting role in respect of that child. In relation to the younger two children, the Applicant’s mother and the Applicant’s sister provide care and, to that extent, fulfil parenting roles in relation to those children.
(f)(Paragraph 8.3(4)(f)) – there was little evidence of the views of the children other than general statement by the Applicant’s adult daughter and the Applicant’s sister to the effect that the children were close to their mother and, presumably would want to be with their mother. As noted above, the subject of their mother potentially being separated from them was not a topic that the Applicant’s oldest daughter or the Applicant’s sister thought appropriate to discuss with the younger children.
(g)(Paragraphs 8.3(4)(g) and 8.3(4)(h)) – there was no evidence that the Applicant had ever abused or exposed the children to family violence (or would do so if she were released back into the community). There is also no evidence that any of the children had suffered trauma as a result of the Applicant’s offending. The submission made by the Minister in this regard (see [90] above) does not address the issue raised by this consideration. In any event, the submission made by the Minister is speculation.
I am conscious of art 3 of the United Nations Convention on the Rights of the Child[48] (CROC) which provides:
1.In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
[48] Convention on the Rights of the Child, opened for signature 2 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
I am also conscious of the preamble to the CROC which states:
... the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ...
My assessment is that the best interests of the minor children of the Applicant would be served by the Applicant being allowed to stay in Australia and that significant weight should be given to this third primary consideration.
Fourth primary consideration: Expectations of the Australian community (para 8.4)
Paragraph 8.4 of Direction 90 relevantly provides:
(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 ... non-revocation of the mandatory cancellation of a visa, may be appropriate simply because 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. In particular, the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/ material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
The Tribunal also refers to the principles set out in para 5.2 of Direction 90 as set out in [30] above.
As noted at [28] above, Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[49] at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs.[50]
[49] NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143.
[50] FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454.
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view 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 what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
I respectfully agree with Senior Member Morris. In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[51] I summarised the effect of the Full Court’s judgment in FYBR and the current state of the law as follows:
[51] Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953.
156.... The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].
157.Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the High Court (Kiefel CJ and Keane J) refused special leave.
158.Justice Stewart in FYBR (FC) found:
89.It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90.However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91.The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
159.Justice Charlesworth also observed:
75.Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
…
79.…The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
160.Member Burford put it in Rehman as follows:
173.It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa.
Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
174.However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other consideration.
(Footnotes omitted.)
Due to the application of the “norm”, as it is now referred to, in para 8.4(1) of Direction 90, and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the revocation of the cancellation of the Applicant’s visa. In this case, however, given the nature of the offence, in particular the fact that it did not involve violence or offending against women or vulnerable members of the community, nor did it involve any of the other attributes identified in sub-paras 8.4(2)(a) to (f) of Direction 90, as well as the very low risk of the Applicant reoffending and the particular circumstances of the Applicant, only minor weight should be given to this primary consideration.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 90 sets out the “Other considerations” to be taken into account as follows:
(1)In making a decision under section ... 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a) international non-refoulement obligations;
(b) extent of impediments if removed;
(c) impact on victims;
(d) links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests
International non-refoulement obligations (para 9.1)
Neither party made any submission on this consideration. Ms Edis in closing confirmed that non-refoulement was not an issue in this case. As she put it:
… international non-refoulement obligations, they just haven’t – they haven’t been raised, haven’t been capable of putting together a cogent argument…[52]
[52] transcript at 134.
Exhibit A2 included reports issued by Human Rights Watch relating to drug rehabilitation and treatment of drug addicts in Vietnam.[53] These reports were from 2012 and 2011 respectively, so their relevance to current conditions in Vietnam is questionable. Exhibit A2 also included a UNHCR/Human Rights Watch document titled “World Report 2018 – Vietnam”,[54] “DFAT Country Information Report Vietnam” dated 13 December 2019,[55] a United Kingdom Home Office report of March 2018 titled “Country Policy and Information Note Vietnam: Ethnic and religious groups”[56] and a UNHCR document titled “World Directory of Minorities and Indigenous Peoples – Vietnam: Khmer Krom” published in March 2018.[57] The Applicant made no reference to these documents and, as Ms Edis made clear in closing, the Applicant does not seek to raise any non-refoulment argument (see [105] above). Insofar as the information in these documents is relevant to other considerations, in particular the consideration of impediments that the Applicant may face in establishing and maintaining basic living standards in Vietnam, I take that information into account in those considerations.
[53] A2, AS6–AS7.
[54] A2, AS8.
[55] A2, AS9.
[56] A2, AS10.
[57] A2, AS11.
I am satisfied that there are no non-refoulement obligations owed by Australia to the Applicant and that this is not a relevant consideration in this matter.
Extent of impediments if removed (para 9.2)
Para 9.2 of Direction 90 provides:
(1)Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
The parties’ submissions
The Applicant
Under this heading in her SFIC, the Applicant contends that:
(a)With all her close family residing in Australia, the Applicant would be left completely absent of any social or emotional support in Vietnam.
(b)Since her grandparents passed away, the Applicant has not maintained any ties in Vietnam. The Applicant has distant family members in Vietnam however, she has no relationship with them. These family members live rurally and are impoverished with no financial means to support her.
(c)The Applicant’s parents are elderly, suffer health ailments and lack financial means to travel overseas.
(d)The Applicant’s siblings are settled Australian citizens with their own families and responsibilities to attend to. As such, it would not be viable for them to frequently travel to Vietnam to see the Applicant.
(e)The Applicant’s children are in the care of her sister who has her own minor child. Similarly, it would not be feasible for her to travel with all the children on a frequent basis, which would also be financially prohibitive.
(f)Accordingly, the Applicant will experience long-term isolation from her family members if she is deported to Vietnam.
(g)It is also relevant to note that the Applicant and her family fled Vietnam due to the horrendous conditions they were living in, subsequent to the Vietnam war. They sought asylum in Thailand before being granted protection visas to settle in Australia. The Applicant holds significant trauma relating to her life in Vietnam and the journey fleeing the country, where she was sexually abused as a minor in Thailand. The Applicant has stated that the thought of having to return “raises the trauma all over again”.[58] The Applicant’s mental health is almost certainly acutely at risk if she is forced to return to Vietnam.
(h)The Applicant requires permanent, ongoing health care and daily medication stemming from her total thyroidectomy. Without any prospects of employment in Vietnam, there is a real risk that she will not be able to access and/or afford continuing health care in Vietnam which would drastically place her health at risk.
(i)If the Applicant is deported to Vietnam, it is highly unlikely that she will not be in a position to continue her rehabilitation, which further exposes her to the real possibility of mental and physical harm.
[58] Citing a letter from the Applicant dated 16 June 2020, R1, G17/147.
The Minister
The total of the Minister’s submissions in his SFIC was:
…There is evidence that the applicant has mental health issues triggered by traumatic life events. The applicant was previously diagnosed with papillary thyroid cancer which required a thyroidectomy and requires ongoing medical treatment. The Minister accepts that the applicant may face challenges readjusting to Vietnam after leaving as a child. Further, the applicant may face practical, financial and emotional hardship if she were to return to Vietnam.[59]
And at para 40 that:
…these factors [impediments and links] should not outweigh the primary considerations of the protection of the Australian community and the expectations of the Australian community.
[59] Minister’s SFIC para 37.
I comment on the inadequacy of such a submission below (see [126] and [145]–[146]).
Consideration
I accept that there is unlikely to be a language barrier to the Applicant establishing and maintaining a basic living standard in Vietnam. Based on the evidence of the Applicant’s father’s statement, the evidence of the Applicant’s mother at the hearing and the information in Exhibit A2 relating to the treatment of Khmer Krom minority in Vietnam, it may be the case that the Applicant could face cultural barriers in establishing a basic living standard if she were to return to Vietnam.
It is clear, in my view, that the Applicant would not have any social support from her extended family in Vietnam. On the basis of the evidence of her parents, the Applicant’s extended family, which appears to be limited to an unspecified number of her parents’ siblings (and presumably their children) are poor rural dwellers with limited or no financial means of providing support to the Applicant.
It is also clear that the Applicant faces significant issues with her health, in particular her drug related health issues, her mental health issues (now identified as being linked to her childhood abuse) and, most significantly, her thyroid cancer and her lifelong dependence on treatment for that condition. These will be impediments to her establishing basic living standards.
As noted above at [110], the Minister concedes that “… the [A]pplicant may face challenges readjusting to Vietnam after leaving as a child”. It is not clear whether the Minister by that statement is accepting that the Applicant faces impediments in establishing basic living standards. I am, however, satisfied that the Applicant would face significant impediments in establishing and maintaining basic living standards (in the context of what is generally enjoyed by other Vietnamese citizens) because of her drug-related convictions, her lack of social support from extended family, her cancer and, potentially, her Khmer Krom ethnicity. Significant weight should be given to this consideration.
Impact on victims (para 9.3)
Paragraph 9.3 of Direction 90 is as follows:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Neither party made any submission on this consideration.
The wording of this consideration is materially the same as that of para 14.4 of Direction 79. As I noted in respect of the same provision in Direction 79 in Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[60] at [109]–[111] and in Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[61] at [138]–[139], although para 9(1)(c) of Direction 90 and the heading to para 9.3 refer only to impact on victims, para 9.3(1) requires consideration of the impact of a decision not to revoke the cancellation of the visa on members of the community, including victims (emphasis added).
[60] Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171.
[61] Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5165.
Insofar as a consideration broader than the impact on victims is required, then one aspect of the possible impact of the Applicant being permitted to stay (i.e. a decision to revoke the cancellation) has been dealt with under the first primary consideration, the protection of the Australian community. The impact of the Applicant’s removal (i.e. a decision not to revoke) is also considered below in the consideration of the Applicant’s links to the Australian community under para 9.4 of Direction 90 and in considering the best interests of minor children under para 8.3. Insofar as the impact on those members of the Australian community is to be considered, I do so under those considerations. I note that this approach is consistent with that taken by White J in Filipovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[62] at [49] onwards.
[62] [2021] FCA 846.
Links to the Australian community (para 9.4)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Strength, nature and duration of ties to Australia (para 9.4.1)
Paragraph 9.4.1 of Direction 90 is as follows:
(1)Decision-makers 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 a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(1)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(2)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Parties’ submissions
The Applicant
By her SFIC the Applicant submitted as follows:
(a)The Applicant has strong and enduring ties with her family and the Australian community. The Applicant and her family migrated to Australia in 1995 when the Applicant was a teenager. She is now 40 years old.
(b)The Applicant’s entire immediate family and support network (comprising her four children, parents and five siblings) are in Australia. They are all Australian citizens.
(c)The Applicant has regularly kept in contact with her family while she has been in prison and now detention with both telephone and in-person visits.
(d)The Applicant’s family members are supportive of her and her ongoing rehabilitation.
(e)The Applicant’s parents will provide accommodation to her in their home as well as employment in the family market garden upon her release from detention.
(f)Everything the Applicant has is in Australia. This is her home.
(g)While the Applicant’s entire family will suffer emotional hardship if she were to be deported, there are particular family members who will be more severely impacted – especially the Applicant’s minor children, her parents, her sisters, and her adult child.
(h)The Applicant’s parents suffer from health ailments and as such require extra care. They were looking forward to reuniting with their eldest daughter; they had been anticipating that she could provide them with much needed assistance in their busy home. The Applicant’s parents accommodate:
(i)their youngest daughter who has Down syndrome and requires a high level of care on a full-time basis;
(ii)three of the Applicant’s children;
(iii)their second youngest daughter (Linda) and her two-year-old child.
(i)If the Applicant moves into the home, she will be able to assist with household duties and errands, and alleviate the pressure faced by her parents. Additionally, she would be able to contribute financially.
(j)The Applicant’s sister Linda is currently the primary caregiver for three of the Applicant’s children (that is, two minor children aged 6 and 11, and her adult child aged 19 years old). While she has openly taken the Applicant’s children under her wing, she has at the same time been prevented from moving forward with her own future plans and aspirations because of this additional parenting responsibility.
(k)Linda has explained that the care of the children was never intended to be permanent and, if it were to become so, she would be hindered in expanding her own family under the current circumstances.
(l)The Applicant’s adult child is aged 19 years old; she is in full-time study and still a dependent of the family unit. She does not have any relationship with her estranged biological father; he abandoned her when she was approximately three years old. The Applicant is the only parental figure in this child’s life, and they share a “tightly bonded relationship”.
The Minister
The sum total of the Minister’s submissions in his SFIC on this consideration was:
The [A]pplicant has immediate family members who are Australian citizens who appear to provide her with support. The [A]pplicant has been in Australia for over 25 years and appears to have developed family and social links to Australia.[63]
[63] Minister’s SFIC para 38.
At para 40 of his SFIC, the Minister contends that:
… these factors [impediments and links] should not outweigh the primary considerations of the protection of the Australian community and the expectations of the Australian community.
I infer from this statement that the Minister concedes that the “other considerations” of “extent of impediments if removed”[64] and “links to the Australian community”[65] weigh in favour of revocation of the cancellation of the visa. The Minister, however, does not say that, and it should not be a matter of the Tribunal having to infer the Minister’s position from the SFIC.
[64] Direction 90 para 9.2
[65] Direction 90 para 9.4.
Further, a submission that a consideration, or two identified considerations, outweigh another consideration or two identified considerations, does not reflect the exercise to be undertaken by the Tribunal. It is not a question of whether one consideration, primary or other, outweighs any other consideration or considerations. The exercise to be undertaken by the Tribunal, described in more detail in [132]–[134] below, is to give weight to each of the considerations, both those for revocation and those against revocation, and then to balance all of the considerations. In doing so, the Tribunal must be guided by Direction 90, in particular the principles set out in paragraph 5.2, and come to a decision as to whether there is “another reason why the original decision” under s 501(3A) should be revoked.[66]
[66] Nahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 209 at [101]; QJTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 609 at [151].
Consideration
The numerous statements and letters of support provided by the Applicant, along with the evidence of the Applicant, her mother, her daughter and her sister all show that the Applicant has deep and significant ties to the Australian community. It is clear from the evidence of those mentioned above that the impact of the Applicant being deported on her immediate family members would be very significant, both financially and emotionally.
The Applicant arrived in Australia as a 14-year-old child. Accordingly, while she arrived as a child, it could not be considered that she was a young child. Her substantial offending started in 2008 and I accept that that was as a result of her drug addiction. Up until that time she had contributed to the community through her employment.
Neither party made a submission on whether Australian business interests would be impacted by the Applicant not being permitted to stay and I am satisfied that this consideration is not relevant in the present case.
I find that the Applicant’s ties to the community and the community’s ties to her are significant and that the members of her immediate family would be severely impacted if she were to be removed from Australia. This consideration, links to the Australian community, weighs significantly in favour of the revocation of the cancellation of the Applicant’s visa.
THE WEIGHING EXERCISE
Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account. It provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[67] and the Full Court of the Federal Court judgment in Minister for Home Affairs v HSKJ.[68]
[67] [2018] FCA 594; (2018) 74 AAR 545.
[68] Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
Colvin J’s judgment in Suleiman was recently considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[69] At [21] Wigney J cited [23] of Colvin J’s judgment which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
(Emphasis omitted.)
[69] [2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
I note that the third principle that Wigney J identifies is that “one or more primary considerations may outweigh other considerations”. While he does couch this principle in terms of “may outweigh”, the reference to a “primary consideration” potentially outweighing “other considerations” is perhaps ambiguous. When his Honour refers to “other considerations”, is he referring to “other considerations” as that term is used in Direction 90 (i.e. Direction 90 para 9) or is he referring to the other considerations, both primary (i.e. Direction 90 para 8) and “other” (i.e. Direction 90 para 9) other than that primary consideration?
The other potential issue that Wigney J’s use of the term “other considerations” raises, is that are we to take him as saying that one or more primary considerations (i.e. a consideration under para 8 of Direction 90) only can outweigh the “other considerations”, even if you take his reference to “other considerations” as being to the other primary[70] (Direction 90 para 8) considerations and the “other considerations” under para 9? I think not. I understand the weighing/balancing exercise to be one by which the decision-maker takes into account all of the considerations, primary[71] and other[72] (mindful of the fact that, generally, primary considerations are to be given more weight) and, having allocated a weight to each consideration, to place those that favour revocation of cancellation or the granting of a visa on one side of the scale and place those that weigh the other way on the other side of the scale and determine which category has the greater weight. I think that it is not correct (as the Minister did in his SFIC) to compare one particular consideration, such as the interests of minor children or impediments to establishing a living standard, and to say that one, usually protection of the community, outweighs that particular consideration. The exercise is not one of comparing any one consideration against another, it is an exercise of giving appropriate weight to each consideration and then balancing all of those which weigh in favour of revocation against those which weighing against revocation and deciding which category has the greater weight.
[70] Direction 90 para 8.
[71] Direction 90 para 8.
[72] Direction 90 para 9.
The Tribunal in CZCV at [164] summarised the legal position as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. ...
I adopt the approach directed by the above cases.
Looking at the first primary consideration, the protection of the Australian community, for the reasons set out above (see [79]), I find that this consideration weighs against the revocation of the cancellation of the Applicant’s visa but that only minor weight should be given to it.
The second primary consideration, family violence, is not relevant in this case.
The third primary consideration, the best interests of minor children, for the reasons set out in [91]–[97] above, weighs in favour of revocation of the cancellation of the visa and significant weight should be given to this consideration.
The fourth primary consideration, the expectations of the Australian community, as it must, weighs against the revocation of the cancellation of the Applicant’s visa. For the reasons set out at [103] above, only minor weight should be given to this primary consideration.
In relation to the “other considerations” identified in Direction 90, for the reasons set out in [112]–[115] above, the consideration of the extent of impediments weighs significantly in favour of revocation of cancellation of the Applicant’s visa. The consideration of the impact on victims as directed by para 9.3 of Direction 90, insofar as it encompasses the impact on members of the community other than victims, is covered by considerations of other paragraphs of Direction 90 (see [118] and [119] above), and insofar as para 9.3 calls upon the Tribunal to consider the impact of a decision under s 501CA of the Act on victims, there is no evidence before me upon which I can make any assessment. The consideration of the links to the Australian community weighs in favour of revocation of the cancellation of the Applicant’s visa and, for the reasons set out in [127]–[130] above, significant weight should be given to this consideration.
Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against the revocation of the cancellation of the Applicant’s visa, I find that the considerations in favour of revocation outweigh those against revocation. Accordingly, I find that there is another reason why the original decision should be revoked.
The Minister’s SFIC
As I noted in a number of places above, the Minister’s written submissions made by way of his SFIC were, in some respects, not helpful. I pointed out to Mr Dennis at the commencement of the hearing that the Minister’s SFIC did little more that paraphrase Direction 90 and then simply state that the Minister contended that the relevant consideration weighs against revocation. There was a paucity of explanation of why that contention was made or identification of the evidence and law supporting that contention. Further, providing a review of the delegate’s reasons for decision is of no assistance to the Tribunal in undertaking the task with which it is charged, namely to do over again that which the original decision-maker did and, on the basis of the evidence before the Tribunal, make its own decision as to what the correct or preferable decision is.[73]
[73] Johnson and Commissioner of Patents [2020] AATA 3983 at [12]–[15] .
Parties should also be mindful of the requirements of the Tribunal’s ‘General Practice Direction’ para 4.31 which requires that the:
... a Statement of Issues, Facts and Contentions, ... must set out clearly:
(a)the issues that remain in dispute;
(b)the essential facts that are relevant to those issues; and
(c)the contentions to be drawn from those facts, including any references to relevant legislation and case law.
Any statement in reply should note what aspects are agreed, which are disputed and any alternative facts and/or contentions.[74]
[74] Administrative Appeals Tribunal, ‘General Practice Direction’ (28 February 2019) para 4.31.
Further, notwithstanding that the Minister’s SFIC was filed after the Applicant’s SFIC, it failed to address the detailed submissions made by the Applicant. It did not attempt to say why the contentions made in the Applicant’s SFIC, which identified relevant evidence and material to support those contentions, were incorrect. The Minister’s SFIC had all of the hallmarks of a generic document which does little more than reproduce applicable sections of the legislation and Direction 90, with which the Tribunal is obviously already very well acquainted, and then makes a general submission as to the Minister’s position without identifying the evidence and legal principles which, in the particular case, support that position.
DECISION
The decision of the delegate of the Minister dated 27 May 2021 not to revoke the cancellation of the visa pursuant to s 501CA(4) of the Act is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.
I certify that the preceding 148 (one hundred and forty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...[SGD].....................................................................
Associate
Dated: 19 August 2021
Date of hearing: 9 August 2021, 11 August 2021 Counsel for the Applicant: Ms J Edis Solicitors for the Applicant: Putt Legal Counsel for the Respondent: Mr L Dennis Solicitors for the Respondent: MinterEllison
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