SWWC and Minister for Home Affairs (Migration)

SWWC and Minister for Home Affairs (Migration) [2019] AATA 586 (29 March 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0206
Re:SWWC
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member K Millar
Date:29 March 2019
Place:Adelaide

The decision under review is affirmed.
..............[Sgnd]...................................
Senior Member K Millar
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Gaspar v Minister for Immigration and Border Protection [2016] FCA 116
SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51
YNQY v Minister of Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Senior Member K Millar
29 March 2019
BACKGROUND

SWWC (‘the Applicant’) is a 38 year old citizen of Vietnam. He arrived in Australia on 9 November 1995 at the age of 15 with his sister and mother as a dependent on his mother’s spouse visa. He said this was his third attempt to leave Vietnam, first attempting to leave and being returned with his father as a small child, and then leaving and being returned after a period in a refugee camp with his mother and sister.
The Applicant said his early period in Australia was difficult because he experienced racism at school and his step-father was violent towards his mother at home. As a result, he left home and was homeless for a period. By 1997, his mother had left his step-father and they were living in a Women’s Refuge. During this time, he developed an addiction to heroin.
His offending history commenced in 1998 when he failed to provide his name and address to a transport officer.[1] This was followed by a series of offences of entering enclosed land without lawful excuse and receiving stolen property. His offending increased in severity with offences of resisting and assaulting police in 1999.
[1] Exhibit G, G Documents, G3, pages 34 – 37.
The Applicant returned to Vietnam in 1999 in an attempt to cease his heroin use, and was granted a Resident Return (Subclass 155) visa on 6 February 1999. This visa is the subject of mandatory cancellation and the application for review.
On his return to Australia his offending continued with further offences of entering enclosed land without lawful excuse, driving offences, failure to comply with bail, and larceny.
The severity of his offending increased in 2004 when he was convicted of armed robbery after holding a hypodermic syringe to the neck of a taxi driver. He was sentenced to four years and ten months imprisonment and was at that time warned about the prospect of his visa being cancelled.
The offences that resulted in the cancellation of his visa were trafficking in a controlled drug and the supply of a controlled drug to another person. His conviction for these offences resulted in a sentence of three years and six months imprisonment, with a non-parole period of 20 months. His offending came to the attention of police when a woman who had been supplied drugs by the Applicant died of an overdose. The Applicant subsequently sold heroin to undercover police on three separate occasions. He was stopped by police and a further quantity of heroin was found on his person.
As a result of this term of imprisonment, a delegate of the Minister found the Applicant did not meet the character test and cancelled his visa under s 501CA of the Migration Act 1958 (“the Act”) on 5 July 2017.[2] The Applicant was invited to make representations about revoking the decision to cancel his visa.
[2] Ibid, pages 51 – 56.
On 6 July 2017, the Applicant made representations in accordance with the invitation, seeking the revocation of visa cancellation.[3] On 4 January 2019, a delegate of the Minister decided not to revoke the cancellation of his visa.[4] The Applicant has applied for a review of this decision.
[3] Ibid, pages 64 – 81.
[4] Ibid, G2, pages 8 – 23.
JURISDICTION
Under s 500 of the Act, an application may be made to this Tribunal for a review of a decision of a delegate of the Minister not to revoke the decision to cancel a visa under s 501CA(4) of the Act.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act states the Minister must cancel a visa that has been granted to a person if satisfied that the person does not pass the character test because he or she has a substantial criminal record as defined in s 501(7) of the Act, and 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.
Section 501(7) of the Act states a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Where the Minister makes a decision to cancel a visa under s 501(3A) of the Act, the Minister may make a decision to revoke the decision to cancel the visa under s 501CA(4) of the Act if satisfied that either the person passes the character test, or there is another reason why the original decision should be revoked.
Under s 499 of the Act, the Minister may give written directions that are consistent with the Act or regulations about the exercise of powers under the Act. Under s 499(2A) of the Act, these directions bind this Tribunal.
The Minister has given written directions about the exercise to revoke the cancellation of the visa in Direction No. 79 (“the Direction”).
It follows that the matters to be determined by this Tribunal are whether the Applicant passes the character test; and, if not, whether there is another reason the decision to cancel the visa should be revoked. In determining if there is another reason why the decision to cancel the visa should be revoked, the Direction must be considered unless inconsistent with the Act or Regulations.
THE OFFENCES
The Applicant has been convicted of 59 offences since he arrived in Australia in 1995. These include driving offences, breaching court orders, drug offences, theft, trespass, resist/hinder/assault police, and carrying an offensive weapon. He has been convicted of failing to comply with bail on five occasions.
Of the Applicant’s offending history, two sets of offences have resulted in terms of imprisonment being imposed, reflecting the gravity of these offences.
The first offence for which the Applicant was sentenced to a term of imprisonment was armed robbery. The offence is summarised in the sentencing remarks of the Supreme Court of South Australia.[5] On 4 May 2003, the Applicant asked a bottle shop attendant to call a cab for him. The taxi was driven by a female taxi driver who was five months pregnant. The Applicant directed her where to go and then asked her to stop. When she stopped he held a hypodermic syringe to her neck and demanded she hand over the money she had. The amount of money that was obtained was unclear, but was between $35 and $70, and was never recovered. The Applicant was apprehended when he returned to the bottle shop and was recognised by the bottle shop attendant. He was taken into custody after his arrest but was then released on home detention bail. He did not comply with the terms of his bail and was taken back into custody for a short period, and then again released on bail. He did not attend court on his first hearing date and was arrested and placed into custody. The Applicant pleaded not guilty and was convicted by a jury.
[5] Ibid, G3, pages 42 – 45.
As a result of these offences, he was sentenced to a term of imprisonment of four years and ten months.
The second set of offences involves the Applicant’s conviction for the supply of a controlled drug, and three counts of trafficking in a controlled drug. The circumstances of the offending were described by the Sentencing Judge in his remarks.[6] On 11 November 2015, the Applicant supplied heroin to a young woman who subsequently died of an overdose. Police conducted an undercover operation between 1 and 8 December 2015, which resulted in the Applicant selling heroin to the police officers on three separate occasions. On 8 December 2015, the police stopped the Applicant’s car and located cash and six plastic wraps of heroin in his pocket. The Applicant was granted bail after being arrested but failed to appear in court in January 2016 and a warrant was issued. He appeared before the court and was again granted bail.
[6] Ibid, pages 38 – 41.
The Applicant pleaded guilty and was sentenced to a term of imprisonment of three and a half years. The Applicant was conditionally released from custody in August 2018, at which time he was taken into immigration detention.
WITNESSES
The Tribunal heard oral evidence form the Applicant’s mother, step-father, and sister. The Applicant also requested the Tribunal to hear oral evidence from his brother-in-law. As his brother-in-law had not provided a written statement at least two business days before the hearing, the Minister submitted that the Tribunal must not have regard to any information presented orally by him in relation to the review in accordance with s 500(6H) of the Act.
Section 500(6H) states that, in relation to the decision under review, the Tribunal must not have regard to any information presented orally in support of the person’s case unless that information was set out in a written statement given to the Minister at least two business days before the Tribunal holds a hearing.
Information is not a document.[7] Section 500(6H) of the Act does not require a statement from the person presenting oral information, it requires that the information is set out in a written statement. The information may be provided in a written statement that is not from the person who is presenting the oral information, particularly in cases such as this where English may not be the person’s first language. As such, the absence of a written statement from the Applicant’s brother-in-law does not in itself prevent him from providing oral evidence at the hearing, as the information which he was to present may be set out in another written statement.
[7] SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 at [110] – [114] in the context of s 424(2) of the Act.
However, in the circumstances of this particular case, the information about which the Applicant’s brother-in-law could present oral evidence was not set out in a written statement and so, in accordance with s 500(6H) of the Act, the Tribunal did not hear from him.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant’s visa must be cancelled if he does not pass the character test and is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State, or a Territory.[8] He does not pass the character test if he has a substantial criminal record where he has been sentenced to a term of imprisonment of 12 months or more.[9]
[8] Section 501(3A) of the Act.
[9] Section 501(7) of the Act
On 26 October 2016, the Applicant was sentenced to a term of imprisonment of over twelve months and so, by definition, does not meet the character test. At the time of the cancellation he was serving a sentence of imprisonment on a full-time basis in a custodial setting.
As a result, the Minister must cancel the Applicant’s visa under s 501(3A) of the Act. Consequently, the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the cancellation of his visa to be revoked. Therefore, the remaining issue to be determined by the Tribunal is whether there is another reason why the original decision should be revoked.
IS THERE ANOTHER REASON THE ORIGINAL DECISION SHOULD BE REVOKED?
Section 501CA(4)(b)(ii) of the Act looks to whether the Minister is satisfied that there is another reason why the original decision should be revoked. According to the Federal Court in Gaspar v Minister for Immigration and Border Protection,[10] this involves an examination of the factors for and against revoking the cancellation. If satisfied the cancellation should be revoked, the Minister, and the Tribunal in the place of the Minister, is obliged to act on that view.
[10] [2016] FCA 116 at [38].
In looking at whether there is another reason the original decision to cancel the Applicant’s visa should be revoked, the Tribunal must apply the Direction.
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They 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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Paragraph 7(1)(b) of the Direction states that a decision-maker must take into account the considerations in Part C in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked. In doing so, information from independent and authoritative sources should be given appropriate weight, both primary and other considerations may weigh in favour or against revocation of the mandatory cancellation of the visa, primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh the other considerations.[11]
[11] Paragraph 8 of the Direction.
The primary considerations in the Direction are the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community.
Other considerations are international non-refoulement obligations, the strength, nature and duration of ties to Australia, the impact on Australian business interests, the impact on victims, and the extent of impediments if the Applicant is removed from Australia.
Protection of the Australian Community
Paragraph 13.1 of the Direction sets out the first of the primary considerations the Tribunal should have regard to, and provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle 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. 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
(a)The nature and the 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 offending
Paragraph 13.1.1 of the Direction sets out matters to be considered in looking at the nature and seriousness of the offending and other conduct to date.
The first of these is that violent or sexual crimes are viewed very seriously.[12] The armed robbery is a violent offence. The second is that offences of a violent nature against women or children are also viewed very seriously.[13] In this case, the armed robbery was committed against a female taxi driver who was pregnant at the time.
[12] Paragraph 13.1.1(1)(a) of the Direction.
[13] Paragraph 13.1.1(1)(b) of the Direction.
Offences committed against government officials due to the position they hold, or in the performance of their duties, are also considered as serious.[14] The Applicant has committed the offences of resist/hinder/assault police in 1999, and hinder police in 2011, which are offences against government officials in the course of their duties.
[14] Paragraph 13.1.1(1)(c) of the Direction.
The sentences of imprisonment imposed by the court must also be considered.[15] In this case, the sentences also reflect the seriousness of the Applicant’s offending. He has been subjected to lengthy terms of imprisonment, namely a term of imprisonment of four years and ten months for armed robbery, and a sentence of three years and six months for the drug related offences.
[15] Paragraph 13.1.1(1)(d) of the Direction.
In looking to the frequency of the offending and whether there is a trend of increasing seriousness,[16] the Applicant has been convicted of 59 offences over 23 years. He has been convicted of trespass, receiving stolen property, drug offences, theft and trespass for which he received terms of community service and small fines. The Applicant’s offending increased in seriousness in 2001 when he was convicted of drive/use motor vehicle without consent and received his first suspended sentence bond. The Applicant received a second suspended sentence bond for larceny in 2004 and then, later that same year, received his first term of imprisonment for the armed robbery offence described above.
[16] Paragraph 13.1.1.(1)(e) of the Direction.
The Applicant has repeatedly offended. There is a trend of increasing severity of his offending, with initial property and trespass offences increasing to larceny, armed robbery, and the trafficking and supply of drugs. The Applicant has stated to the forensic psychologist that this was to fund his heroin addiction, and that he turned to the trafficking and supply of drugs so that he did not steal from people.

There is no information before the Tribunal to suggest that the Applicant has provided false or misleading information to the Department,[17] or that he has committed any crimes while in immigration detention.[18]
[17] Paragraph 13.1.1.(1)(g) of the Direction.
[18] Paragraph 13.1.1(1)(i) of the Direction.
A further consideration is whether the Applicant has reoffended since being formally warned about the consequences of further offending on his migration status.[19] In this case, following his conviction for armed robbery, the Applicant was notified that his visa may be cancelled. On that occasion the Minister decided not to cancel his visa, and the Applicant was issued with a written warning on 23 April 2007 which stated that if he continues to offend he faces the real possibility of visa cancellation and return to Vietnam.[20]
[19] Paragraph 13.1.1(1)(h) of the Direction.
[20] Exhibit G, G Documents, G3, pages 46 - 47.
The Applicant was asked about this previous warning. He stated he did not appreciate the seriousness of the warning that was given until he was transferred to immigration detention after serving the most recent period of imprisonment. At the time, he said he had to write a letter within 28 days and after he wrote the letter he was told his visa would be valid again, and that at stage he did not think it was that serious.
Having considered the factors that must be taken into account, the nature and seriousness of the offending weighs against revoking the cancellation of the Applicant’s visa.
Risk to the Australian Community
Paragraph 13.1.2 sets out the matters to be considered in regard to the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. The Tribunal must have regard to the nature of the harm should the Applicant engage in further criminal or other serious conduct, and the likelihood of the Applicant engaging in such conduct in the future.
The nature of the harm of a person as a result of being assaulted or harmed during an armed robbery is serious, and the potential risk to a person if this conduct were to be repeated is high. The risk to the community should the Applicant return to the supply or trafficking of heroin is shown by the death of the person to whom he had sold heroin.
In a forensic psychology report[21] dated 18 October 2016 which was prepared for sentencing, Dr Lorraine Lim stated that, in response to being questioned about the person who died following an overdose on the heroin he had sold, the Applicant said “I feel shit about that. But no matter what I feel I need to support my addiction. That’s the thing about heroin, it forces you to do things even when you don’t want to”. It is reported that the Applicant believed there was ‘no point’ in getting treatment because he was going to prison anyway, but maybe would look into it when he got out. Dr Lim concluded that substance use is the Applicant’s primary crimogenic factor, and one that will continue to predispose him towards future reoffending if unaddressed. In regard to his prospects for rehabilitation, Dr Lim stated:
“I am somewhat pessimistic about [the Applicant’s] future prognosis even with case management and rehabilitation, in light of his entrenched drug dependency as well as his attitude of hopelessness in that regard. He will require long term professional support and intensive case management with an experienced professional such as a psychologist specialising in drug addictions as well a pharmacotherapy (e.g. Methadone) for any positive change to occur, including in the area of his mental health functioning. Nevertheless I would consider his prognosis without treatment/rehabilitation to be even bleaker.”
[21] Exhibit A11.
The Applicant states he has ceased using heroin, and drug tests conducted while he was most recently in prison have returned negative results. He is currently prescribed methadone and says he is trying to reduce his reliance on methadone while in immigration detention.
The Applicant does not appear to have fully engaged with the extent of his problem with drugs. He said he ceased using heroin five or six months before going to prison however, during the forensic psychology assessment conducted a matter of weeks before his imprisonment, he is reported as stating he was currently using heroin. He explains his offending through the prism of his drug use, for example, stating the assault police charge was due to his need to not be arrested because of his drug use, and likewise for his previous plea of not guilty to the armed robbery offence. He does not appear to regard his behaviour as being within his control while he was addicted to drugs, which is shown by his statement to the psychologist.
As a result, there will be a risk to the community unless the Applicant ceases his drug use. The nature of the harm that could result is that which follows from his trafficking, supply of drugs, or theft or robbery to support his drug use. This is supported by his criminal history which shows offences such as receiving stolen property and theft from 1999, and larceny in 2004. The harm caused by trafficking in drugs is shown by the death of a woman after the Applicant sold her heroin. The potential harm to others if the Applicant was to reoffend is high.
He has also been charged with offences relating to carrying offensive weapons. On one occasion, the weapon was described as a samurai sword. The Applicant states this was a decorative sword he had with him due to issues with his sister’s then boyfriend, and that he was going to use it to bar the door. Another is described as an eight-pointed throwing star which was found in his car. The Applicant says he did not know that a throwing star was an offensive weapon, and that it was left in his car by his niece who liked to spin it on her finger. I consider there is a lower risk of harm to others through the use of an offensive weapon should the Applicant reoffend.
In looking at the likelihood of reoffending, the Minister relies on the report of Dr Lim which stated that he will require long term professional support and intensive case management with an experienced professional, as well as methadone. The Minister submits that, apart from the Applicant’s treatment with methadone, this has not occurred. It is further submitted that paragraph 13.1.2(1)(b) of the Direction notes that decisions should not be delayed in order for rehabilitative courses to be undertaken.
The Applicant states he attended groups and accessed ad hoc support from a community worker from the Vietnamese Community in SA when he was granted bail a few weeks before he was imprisoned. He said the groups were generally run once a week but that he would also see the counsellor when he stopped by, as the Vietnamese Centre was close to where his mother lived. He said he learned from these sessions to be persistent in his intention to keep his goal in life, which is to stay with his family and build his own family with a wife.
He provided to the Department a statement from an alcohol and drug counsellor at the Vietnamese Community of SA who says that the Applicant approached him prior to being incarcerated and said he wanted to quit heroin. He states that a group for alcohol and drug users is run at the Vietnamese Community once a month and that, when released, he can provide counselling, case management, and practical support for the Applicant. The Applicant nominated the counsellor as a witness, however the Tribunal was unable contact him on the telephone number nominated, and the Vietnamese Community Association advised that he had not worked there for over a year.
The Applicant completed a Victims Awareness Course when he was in prison in 2005, which he says taught him to recognise his triggers and place himself in the victim’s shoes. He did not complete any courses during his most recent period of imprisonment and says this was because the “Making Changes” course offered was directed towards violent offenders and, as he was not seen as a risk, he was told he did not need to attend. He said inmates in gaol do not have a choice in the programs they participate in and that if the course had been recommended, he would do what he was told. While the Applicant stated he was not enrolled in the course, corrections records show he was. However, I accept his explanation that he was told not to attend as the remaining records show he was compliant with the directions of corrections staff.
While the prospects of the Applicant ceasing his drug use have improved as he has not taken heroin while in gaol and now realises the gravity of his situation and addiction, he has not undertaken the rehabilitation recommended by the forensic psychologist. There is nothing before me that would show this rehabilitation would have been available to him in prison, however the Direction states a decision cannot be delayed for rehabilitative courses to be undertaken.
The Applicant states that what has changed is his understanding of the seriousness of his position now that he is in immigration detention, during which time he has had opportunity to reflect on his actions using meditation, and now sees the cause of destruction in his life and how he can forge a better path in the future.
The Applicant has had numerous attempts to cease his drug use, including going to Vietnam for a period of months to stay with his paternal grandmother in 1999. He also relocated from New South Wales to South Australia to live with his mother and remove himself from influences in New South Wales. This was also ultimately unsuccessful as he had little help or support and experienced strong withdrawal symptoms. He said his longest period of abstinence is approximately a year. This is his longest period of abstinence in the community in a period of a little under 20 years. The drug tests conducted while he was in prison support that he has not used drugs since he was imprisoned in October 2016, and this shows he can abstain while in a controlled environment.
The Applicant states he has the support of his family, and can work in the family business. I accept this is the case, however this is the same environment than in the period before his imprisonment when he was using drugs and offending.
In looking at the Applicant’s prospects of relapsing into drug use in the community, and therefore being at high risk of re-offending, overall as a predictor of his likely future behaviour, his long pattern of heroin use and relapse following periods of abstinence outweighs his current record of abstaining from drug use while in prison and in immigration detention. As a result, I consider it moderately likely the Applicant will relapse into drug use in the community and again offend with the resulting risk to the Australian community. This consideration weighs against revoking the cancellation of the Applicant’s visa.
Best interests of minor children
The second primary consideration is the best interests of minor children affected by the decision. This applies to children under 18 years of age and the best interests of each child affected are to be given individual consideration.
The Applicant has a daughter who is 15 years of age, a niece who is 14 years of age, and a nephew who is approximately three years of age who would be affected by the decision to revoke the Applicant’s visa. The interests of each of these children affected must be considered separately.
Paragraph 13.2(4) of the Direction sets out the factors to be considered in examining the best interests of the children, and each factor that may apply to the Applicant and these children has been considered in turn.
Paragraph 13.2(4)(a) of the Direction provides as a consideration:
The nature and duration of the contact 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).
The Applicant said he separated from his daughter’s mother when his daughter was approximately three months old due to his drug use, and they returned to New South Wales. He said he attempted to contact his daughter when she was five years old, but by this time his ex-partner had a new family and so he thought he should leave them alone because he could not look after them. He has continued to try and locate his daughter over social media, however has not had contact with her since she was five years of age.
The revocation of the cancellation of the Applicant’s visa would be in the best interests of his daughter as the opportunity to re-establish contact would be higher if he is in Australia. However, less weight can be given to this consideration as the Applicant has not had any meaningful contact with his daughter from the age of three months.
In regard to the Applicant’s niece, evidence was given that he cared for his niece for a period before he was imprisoned when his sister was working and incarcerated. The period of time over which he provided this care was unclear. The care he provided included picking up his niece from school. The Applicant’s mother has also provided care for his niece, however also works and is unavailable at times.
The Applicant’s nephew was born approximately seven months before he was imprisoned in October 2016, and the Applicant provided care at times when his sister was working. Since then, her husband lost his job and cared for the children however now that her husband has returned to work, the Applicant’s nephew attends family day care.
If the cancellation of the Applicant’s visa is not revoked, this will have an adverse effect on his niece and nephew.
His relationship to his niece and nephew is non-parental, and therefore is to be given less weight. His niece has the care of the mother and maternal grandmother, and his nephew has the care of both of his parents and his maternal grandmother.
In regard to his nephew, the Applicant’s absence from his nephew’s life for the last three years, in a context where his nephew was seven months old when he last provided care, means there has been a relatively long period of absence from his nephew’s life. As a result, less weight can be placed on the adverse effect on his nephew if the cancellation of his visa is not revoked. The impact on his niece is greater as he has had a longer term relationship with her.
Other factors contained in paragraph 13.2(4) of the Direction that may apply are the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and the likely effect of separation having regard to the child’s or non-citizen’s ability to maintain contact in other ways.
As he has been unable to contact his daughter, the likelihood of him re-establishing contact with his daughter is reduced, as is the likelihood of him playing a positive parental role in the future. It is possible he could establish contact with his daughter in other ways, such as over social media, and he could maintain contact with his niece and nephew in the same way.
The best interests of the child weighs in the Applicant’s favour, but is given less weight as he does not currently have contact with his daughter, and has not had contact with her for a lengthy period of time, and because he does not have a parental role for his niece and nephew.
Expectations of the Australian community
Paragraph 13.3 of the Direction sets out the third of the primary considerations the Tribunal should have regard to and provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
As pointed out by Mortimer J in YNQY v Minister for Immigration and Border Protection[22] at [76] and [77]:
“In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
... It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.”
[22] [2017] FCA 1466.
It follows that this primary consideration weighs against revoking the cancellation of the Applicant’s visa.
Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations, as set out in paragraph 14 of the Direction, include, but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
There being no information before the Tribunal about the impact of victims, the remaining factors were considered in turn.
International non-refoulement obligations
According to paragraph 14.1(4) of the Direction:
Where a non-citizen makes claims that may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid claim for another visa is the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
The Applicant came to Australia from Vietnam following two unsuccessful attempts to leave. It is stated that at the time of the civil war his father supported the opposition and the family was persecuted. The Applicant has since returned to Vietnam for a period of approximately four months in 1999 to stay with his grandmother.
As the Applicant came to Australia as a dependent on his mother’s spouse visa, he is able to apply for a protection visa if he seeks refuge within Australia. Therefore, according to paragraph 14.1(4) of the Direction, it is unnecessary to determine whether non-refoulement obligations are owed to him in this application.
Strength, nature and duration of ties
In considering the strength, nature and duration of the Applicant’s ties to Australia, regard must be had to how long he has lived in Australia, noting that less weight should be given where the offending commenced soon after arriving in Australia, and more weight should be given to the time he has spent contributing positively to the community.[23]
[23] Paragraph 14.2(1)(a) of the Direction

The Applicant came to Australia in 1995 when he was approximately 15 years of age, and has been here ever since, other than a short period in Vietnam, amounting to a period of approximately 23 years.
His offending commenced in 1998; three years after his arrival. He has not demonstrated any lengthy period in which he did not offend, however many of the offences involve trespass, which the Applicant states resulted from him being homeless and seeking shelter. The escalation in his offending to convictions for possessing prohibited drugs and resist/hinder/assault police commenced from 1999. As his offending began within three years of his arrival, less weight should be given to the time he has been in Australia.
In the time he has been in Australia, the Applicant has worked for a farm in South Australia and attained a fork lift license. According to written submissions, this work ended after a step-uncle visited form New South Wales and a person at the farm was injured by the step-uncle through the use of a firearm. This resulted in the Applicant losing his job and the family being ostracised. He has also worked for his mother when she had a shop with her previous partner, and with her and her current husband in their construction business. Before being imprisoned, he worked for his mother and step-father in their renovation business, driving and picking up materials for approximately 20 hours per week. His step-father estimated that he last worked before he went to prison.
The time in which he has contributed to the community independently of support from his family is limited. I accept that should the cancellation of his visa be revoked, there would be an opportunity for him to work in the construction company owned by his mother and step-father. Some weight should be given to his time spent working on the farm and with his mother and step-father. However, as this time was limited, the weight to be given to it is limited accordingly.
According to the Direction, the Tribunal must have regard to 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 live in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely).[24]
[24] Paragraph 14.2(b) of the Direction.
The Applicant’s mother, stepfather, half-brother, sister, brother-in-law, and niece and nephew are all either Australian citizens or hold permanent visas.
The Applicant has submitted a number of statements from his family, namely from:
(a)His mother (“HHP”), where she talks about the Applicant’s difficult upbringing and struggles with drugs. She says they came to Australia in hopes of a better life and that her son was seduced by the lifestyle promised to him by those who supplied him with drugs, as he had wanted money to improve his living situation. She also says that she does not want her son returned to Vietnam and can provide him with employment in her construction business and states she will personally supervise him when taking his methadone every day.[25]
(b)His case worker (“LH”), who says he can provide counselling to the Applicant once he is released.[26]
(c)His brother (“TH”), who says the Applicant has been a help to the family in working in the renovation business and looking after his niece.[27]
(d)His sister (“NCN”), who says the Applicant also looks after her children when she is at work. She says she would like the Applicant to continue doing this when released by moving in with her.[28]
(e)His step-father (“BK”), where he states the Applicant’s mother has provided financial support to the Applicant in the past, however this has not helped and now she is anxious about his deportation.[29]
[25] Exhibits A2 and A7.
[26] Exhibit A3.
[27] Exhibit A9.
[28] Exhibit A4.
[29] Exhibits A5, A6 and A10.
The Applicant has significant family ties in Australia, with his mother, sister, brother-in-law, half-brother, and niece and nephew all residing in Australia. His mother, step-father and sister all appeared before the Tribunal to give oral evidence in support of the Applicant, although at times his mother and step-father were at a loss about how to support him to cease his use of drugs. These family members continue to support the Applicant and there are strong ties over a long duration despite his offending and drug use. His family ties in Australia weigh heavily in his favour.
Impact on Australian businesses
The Applicant’s mother and step-father are the directors of a construction company. His step-father is approaching 79 years of age and says he is unable to perform many of the physically demanding tasks required. He wants the Applicant to remain in Australia to assist his mother with the company and so that he can step back from the business.
While there would be an impact on this company if the Applicant’s visa is cancelled, the Direction states an employment link would only generally be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.[30]
[30] Paragraph 14.3(1) of the Direction.
As there is no information to show that non-revocation would have such an effect, this consideration, while in the Applicant’s favour, is given little weight.
Extent of impediments if removed
In regard to the extent of impediments the Applicant may face if he is removed from Australia, the ability to establish himself and maintain basic living standards, his age and state of health, whether there are substantial language or social or cultural barriers, and the medical and/or economic supports available to him are all to be taken into account.[31]
[31] Paragraph 14.5(1) of the Direction.
The Applicant was unsure whether he was a citizen of Vietnam, but acknowledged he was born in Vietnam and was not aware of having renounced his citizenship.
The Applicant is likely to have difficultly re-establishing himself in Vietnam given he left Vietnam as a minor with poor education and has spent little time there since arriving in Australia. He has little by way of financial resources due to his imprisonment. To his advantage is his ability to speak the language, and that he is of working age.
The Applicant had considerable concern about access to medical and counselling services, as he says there are no services in Vietnam for people with a drug addiction. The Applicant has received treatment for Hepatitis C while in prison. He said that to access treatment or services in Vietnam he would need money. To the extent that his lack of financial resources means he does not have access to services for treatment and rehabilitation of his drug addiction, he will face hardship in being removed to Vietnam. There is nothing before the Tribunal to show he requires current treatment for Hepatitis C.
The Applicant spent some months in Vietnam in 1999 with his paternal grandmother. He states his grandmother has since passed away. His father is still living, but the Applicant says he has no contact with his father or other family members in Vietnam. If he is removed from Australia and returns to Vietnam, he is unlikely to have the support of family unless and he can re-establish ties with family members in Vietnam.
The Applicant says he comes from a third world country without human rights and where citizens cannot get assistance from the government. He says Vietnam is a communist country and that this means there is no freedom, no human rights, people are exploited, and people go hungry. He believes the only role of the government in Vietnam is to rob land from their own people, and considers that the type of government speaks for itself. His approach is understandable given his statements that his family tried to leave Vietnam because of violence, starvation, and surveillance by the government. The Tribunal accepts the Applicant has a subjective fear of returning to live in Vietnam, and this would be an impediment to establishing himself. This consideration weighs in the Applicant’s favour.
Conclusion
Having considered the relevant matters in the Direction, I find the protection of the Australian community and the expectations of the Australian community weigh against revoking the mandatory cancellation of the visa, and the best interests of minor children weigh slightly in favour of revoking the mandatory cancellation of the Applicant’s visa.
Of the other considerations, the strength, nature and duration of the Applicant’s ties to Australia, in particular his ties to his family in Australia, and the extent of impediments if removed weigh in the Applicant’s favour. However, they do not outweigh the protection of the community and the expectations of the community.
Having considered the matters contained in the Direction and weighed the primary and other considerations, I have concluded that, for the purposes of s 501CA(4)(b)(ii) of the Act, there is not another reason why the original decision should be revoked.
Decision
The decision under review is affirmed.

107. I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Millar

......[Sgnd]....................................
Associate
Dated: 29 March 2019

Date of hearing: 20 and 21 March 2019

Applicant: In person

Advocate for the Respondent: Claire Stokes, Australian Government Solicitors

[2019] AATA 586

29 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date of hearing:	20 and 21 March 2019
Applicant:	In person
Advocate for the Respondent:	Claire Stokes, Australian Government Solicitors