Thieu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2024] AATA 79
•18 January 2024
Thieu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 79 (18 January 2024)
Division:GENERAL DIVISION
File Number(s): 2023/7958
Re:Thi Thanh Tam Thieu
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:18 January 2024
Place:Sydney
The decision under review is set aside and in substitution the mandatory cancellation of the applicant’s visa is revoked.
........................[SGD]................................................
Senior Member A Poljak
Catchwords
MIGRATION – mandatory cancellation of Five-Year Resident Return (BB-155) visa under section 501(3A) – where applicant does not pass the character test – applicant has substantial criminal record – whether the discretion to revoke the visa cancellation under section 501CA(4) should be exercised – consideration of Ministerial Direction No. 99 - decision under review is set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
DQM18 v Minister for Home Affairs (2020) 278 FCR 529
SCJD and Minister for Home Affairs [2018] AATA 4020
Secondary Materials
Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member A Poljak
18 January 2024
Ms Thi Thanh Tam Thieu, the applicant, is a citizen of Vietnam. The applicant first arrived in Australia on 21 December 2003 on a Partner (BC-100) visa. The applicant was granted a Five-Year Resident Return (BB-155) visa (visa) on 19 February 2014.
On 28 August 2019, the applicant was convicted for a number of drug related offences, most significantly, Supply prohibited drug >+ commercial quantity- si and was sentenced to imprisonment for 3 years, with a non-parole period of 20 months. Further, on 15 November 2021, the applicant was convicted of DM 5 trafficking in dangerous drugs (between 31/08/2015 and 19/05/2016) and DM 6(1)(C) Supplying schedule 1 dangerous drugs (4 charges on or about 09/03/2016, 19/03/2016, 11/04/2016, 17/05/2016) and was sentenced to 7 years imprisonment with a parole eligibility date of 15/03/2023.
On 26 September 2019, the applicant's visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) (visa cancellation). On 26 October 2023, a delegate of the Minister decided, pursuant to subsection 501CA(4) of the Act, not to revoke the decision to cancel the applicant's visa. This is the decision under review in these proceedings (decision under review).
Issues
The applicant does not pass the character test by virtue of her sentence of imprisonment for the offending conduct: subsections 501(6)(a) and 501(7)(c) of the Act. As such, the sole issue for determination is whether there is another reason why the visa cancellation should be revoked, under subsection 501CA(4)(b)(ii) of the Act.
Relevant Legislative Provisions
Subsection 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test and is serving a full-time custodial sentence of imprisonment.
Subsection 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a “substantial criminal record” as defined by subsection 501(7). Subsection 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Subsection 501CA(4) of the Act provides that the Minister may revoke the original decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked. This is a discretionary power.
A decision under subsection 501CA(4) of the Act involves an assessment and evaluation of the factors for and against revoking the mandatory cancellation decision. A determination under subsection 501CA(4) must be carried out in accordance with any written directions given by the Minister under the Act: subsection 499(2A).
In considering whether to exercise the discretion in subsection 501CA(4) of the Act, the Tribunal is required by subsection 499(2A) of the Act to have regard to the Minister’s Direction relevant to section 501CA, Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).
The preamble to Direction 99 provides a framework for the guidance of decision-makers. Paragraph 5.1 of Direction 99 comprises a statement of objectives. Paragraph 5.2 sets out 'principles' that should inform the decision-makers exercise of discretion:
(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 measurable 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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) 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 8.55(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 measurable risk of causing physical harm to the Australian community.
Paragraph 6 guides decision-makers as to the making of the visa cancellation, refusal or revocation decision. Relevantly in relation to considering revocation of a mandatory cancellation, it provides:
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7 of Direction 99 states that decision-makers must take into account the primary and other considerations relevant to the individual case. Generally, primary considerations should generally be given greater weight than the other considerations: paragraph 7(2).
Paragraph 8 of Direction 99 identifies the five 'Primary considerations', which the Tribunal must consider in determining a revocation request. They are (paragraph 8(1)-8(5)):
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
Paragraph 9 identifies other considerations which must be taken into account. Those other considerations listed are non-exhaustive, and are as follows (paragraph 9(1)):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard as a primary consideration to the protection of the Australian community from criminal or other serious conduct. In this respect, paragraph 8.1(1) of Direction 99 states as follows:
When considering protection of the Australian community, decision-makers 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.
Paragraph 8.1(2) of Direction 99 provides that 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 applicant's conduct
Since 2011, the applicant has been convicted of a total of ten offences. Her offending conduct involved driving offences, common assault, and drug related offences. There is frequency to her conduct and an increasing level of seriousness.
The applicant's conduct, specifically that related to the applicant’s drug related offending conduct, is viewed very seriously. The seriousness of the applicant’s conduct is reinforced by the sentences imposed. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.
The circumstances of the applicant’s significant drug related offences are contained in remarks on sentencing and are summarised below.
Judge Turnbull SC of the District Court of NSW summarised the applicant’s offending and agreed facts to the conviction Supply prohibited drug >+ commercial quantity- si of which she was sentenced to imprisonment for 3 years, with a non-parole period of 20 months. In summary, on 12 January 2018, Police executed a search warrant of the applicant’s residence and located 2.044 kilograms of 1,4-butanediol inside a green ice cream container in the freezer. Numerous notebooks, ledgers, receipt books, clear resealable bags, mobile phones, and cash were also seized. When considering the applicant’s role, the Judge noted evidence provided by medical experts, aspects of the applicant’s evidence and that of her children. He rejected the Crown’s proposition that the applicant’s involvement falls about the mid-range of objective seriousness. Judge Turnbull SC found, … “that she tolerated the presence of drugs. It is clear that she allowed and facilitated the storage of drugs in the freezer and that she tolerated the retention, if not the storage, or if not the - well that she facilitated the storage and retention of the ledgers and the like…There is no direct link to the offender beyond the presence inside her residence. And I am inclined to see that as a reflection, if I am correct, of the circumstances that she found herself in with this fellow who was living in the house…So she had an emotional link to another individual who seems to have had some involvement in this activity. She was vulnerable. She was economically vulnerable. She was subject to ongoing depression and she had children there…So in those circumstances her role is an associated role. I cannot find that she is a principal. I do note her taking responsibility for the $9,575. I reject aspects of her self-serving account in the report as to that. And I do note that it is almost inevitable if you are a mother in these circumstances that she ends up with the children in her house. The criminal course adopted would seem to have been one which she fell into rather than herself was driving…Her offending behaviour in my view is towards the lower range of objective seriousness. It is certainly not in the mid-range of objective seriousness, it is far from it…”
In relation to 2015 and 2016 drug offences for which the applicant was sentenced to seven years' imprisonment on 15 November 2021 in the Supreme Court of Queensland, Jackson J noted the applicant’s early pleas of guilty and remarked:
The period of trafficking was eight months and 19 days. The drugs were methylamphetamine and heroin. … It is better described, in my view, as at a significant level involving supplies by you from Sydney to Brisbane to purchasers who were themselves traffickers or on-suppliers. You had six substantial customers based in Brisbane. They were V.H. Huynh, T.P. Pham, H.P. Lu, V.C. Tran, and N.H. Doan and T.H. Tran.
… your dealing for which you are responsible consists of your own supplies and the business that you conducted on your own account.
On 27 September 2015 you supplied V.H. Huynh with a sample of a dangerous drug at the Brisbane Treasury Casino. On 3 October 2015 you supplied V.H. Huynh with an unknown quantity of a dangerous drug, again at the Brisbane Treasury Casino. On 10 October 2015 you supplied two ounces of a dangerous drug to V.H. Huynh by courier to the Gold Coast.
On 15 February 2016 you offered to supply an unknown quantity of dangerous drugs to N.H. Doan and T.H. Tran. The sale did not take place. On 27 March 2016 you supplied one kilogram of dangerous drugs to T.S. Li and V.C. Tran in Brisbane for $40,000. The facts concerning that transaction seem slightly confused as the statement of facts refers to T.S. Li as also being your supplier. On 28 March 2016 you offered to supply N.H. Doan with two ounces of a dangerous drug.
On 4 April 2016 you arranged for M.V. Tran to sell one kilogram of dangerous drugs to V.C. Tran, but the sale was not completed.
Before 5 April 2016 you supplied an ounce of a dangerous drug to Trinh for $8700. On 3 May 2016 V.C. Tran requested something from you. He said he had money and you arranged to come up on the weekend. He was going to order two of something and pay the price of one, but these were acts preparatory to a supply. It’s not said there was an actual supply. On 8 May 2016 you supplied Mrs Thuy with a sample of methylamphetamine.
Most of those supplies as I’ve recounted them so far were of the nature of an offer to supply or acts preparatory to a supply or supply of a sample. There were, however, some more serious actual supplies.
On 9 March 2016 you supplied an unknown quantity of dangerous drugs to V.C. Tran. You paid a courier who worked for you on occasions $5000 for the delivery. On 19 March 2016 you supplied an unknown quantity of drugs to V.C. Tran for $20,000 as part payment for the drugs. The courier involved was also paid $5000 for the delivery. On 10 April 2016 you arranged to supply 1.1 kilograms of 15 methylamphetamine from Sydney to Brisbane for V.C. Tran for $57,000. The courier who was carrying the drugs was intercepted. On 17 May 2016 you supplied 350 grams of heroin to V.C. Tran in Brisbane. Again, the courier who was involved in the supply was intercepted.
So far as your business involved acquisitions of drugs for the supplies that I’ve recounted, you had three suppliers from whom you sourced drugs. You purchased them with upfront payments. You would source in quantities between one quarter of an ounce or seven grams and two kilograms. For example, on 24 March 2016 you sourced an unknown quantity of drugs from T.S. Li for $37,000. On 4 April 2016 you sourced an unknown quantity of dangerous drugs from T.S. Li, and on 8 April 2016 your intermediary sourced two kilograms of methylamphetamine. On 10 April 2016 you sourced one kilogram of methylamphetamine from T.S. Li. They were the drugs that were to be couriered the following day. On 11 May 2016 you sourced one ounce or 28 grams of dangerous drugs to sample.
The business that you carried on involved the use of couriers. Two in particular were T.V. Truong and M. Vuong. Truong transported drugs on at least five occasions for you, and Truong on one occasion.
Drug related offences are considered very serious. The effect on the Australian community can be considerable and it places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities, see SCJD and Minister for Home Affairs [2018] AATA 4020. I also note that in relation to the offences committed by the applicant in or about January 2018, it occurred whilst the applicant was on bail for her 2015-2016 drug offences, for which she was convicted in 2021. This shows a significant disregard for the law as the applicant ought to have known that conduct of a similar nature to that of her charges of which she was on bail, would be contrary to the law.
In addition to the drug related offences, I note that the applicant was convicted of Common assault- T2 in 2011. While the specific findings of the Court are not available and there is a discrepancy between the Police Fact Sheets and the applicant’s account of events, it was accepted by the applicant at hearing that she was involved in an altercation and an assault occurred. This conduct is viewed very seriously as it is conduct of a violent nature.
I also note that in 2011, the applicant was found guilty of a traffic offence, being drive with middle range PCA, and was fined $300 and disqualified from driving for a period of six months. This conduct again reveals not only a disregard for lawful authority in Australia and for the safety of other road users.
Paragraph 8.1.1(1)(f) of Direction 99 requires the decision-maker to consider whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. The applicant did fail to disclose her conviction on her incoming passenger cards dated 20 March 2013, 29 January 2014, and 29 April 2015. The applicant’s evidence is that due to her language barrier and low education, she misunderstood the question and the meaning of the word ‘conviction’. This was despite the incoming passenger cards in 2013 and 2014 being printed in Vietnamese, and that the applicant completed 12 years of schooling in Vietnam and has previously worked as a clerk.
Risk of Reoffending
The applicant has a history of criminal offending which spans a sustained period, and the applicant has committed further drug offences whilst on bail for earlier drug-related offences. After reviewing the sentencing remarks for the applicant’s drug related offences, it is plain that she committed the offences in the context of being vulnerable and suffering from mental health conditions.
In 2009, the applicant was admitted to a psychiatric ward and once discharged, she was prescribed medication. However, the applicant subsequently stopped using the medication due to her concerns about overusing the medication. She did not have any further contact with mental health services from 2011 until her arrest. The applicant has sought psychiatric and psychology support while in custody.
In a Risk of Re-Offending Assessment undertaken by Queensland Corrective Services on 16 November 2021, the applicant was assessed at 1 out of 22, with 22 being highest risk of reoffending.
In December 2023, the applicant was referred to Tim Watson-Munro, consultant psychologist, for interview and psychological assessment. In a report dated 20 December 2023, Mr Watson-Munro detailed the applicant’s background, social, drug and alcohol, and criminal history of the applicant. He also explained in his report that he interviewed the applicant’s children. He reported:
She described longstanding symptoms of depression, anxiety, low self-esteem and a sense of futility regarding the future, which by her account date back to the time that her marriage began to unravel. During that period she was exposed to domestic violence, including psychological abuse, control, gaslighting and aspects of toxic narcissism demonstrated by her former husband. She stated that these symptoms were further exacerbated when her husband abandoned the family and although the abuse ceased, the pressures surrounding her life referable to her financial position and survival of her family escalated. Ms Thieu stated that it was essentially in this context that her self-esteem waned and arising from this, she became quite vulnerable to potentially adverse peer group dynamics.
Ms Thieu’s emotional state has been further compromised by her incarceration and attendant to this, her genuine fears on how she will survive in the absence of her family if she is returned to Vietnam. She acknowledged that she has previously visited Vietnam on several occasions for periods of 10-14 days. This was during a time that her father was ill prior to his death. She stated that she fears for her future in Vietnam adding “if I had to return to Vietnam, it would be like jail for the rest of my life… I couldn’t see my children or visit my children”. She stated if she is permitted to remain in Australia, she will be able to maintain treatment for her symptoms in the community, as well as being of assistance to her children. She reported that it is intended that if she returned to the Australian community, she will live with them under the one roof. Ms Thieu stated that she is remorseful for her criminal conduct and added that she has no desire to commit further crimes stating “I will be a good citizen”. She believes that she will be able to assist her children in their enterprises, including a take-away shop in Westfield that sells bread. She stated that she will not associate with former bad influences in her life adding “I don’t want to”.
Ms Thieu confirmed her hospitalisation at the Liverpool Hospital Psychiatric Ward. She stated that she is now undertaking psychological treatment in immigration detention. She sees a psychologist twice a month and another mental health provider two times a month as well. She is also on medication. She stated that this relates to depression and in addition, she has on occasions experienced auditory hallucinations. I note from the documentation that this is thought to be a function of severe depression rather than reflecting a psychotic illness.
In conclusion, Mr Watson-Munro opined:
It is apparent at the time of her offending that she was in a parlous psychological state. Prior to this she had been hospitalised for major depression for a period of 6 months at the Liverpool Hospital in their Psychiatric Ward. This clearly speaks to the intensity of her symptoms and distress at that time. It is noted that as a function of her depression, she was suffering cognitive difficulties referable to memory and I further note that the possibility of a dissociative disorder has been raised in the medical material. Ms Thieu was experiencing substantial financial and emotional distress, arising from the breakdown of her marriage, with her describing her husband as effectively abandoning the family and leaving her as a single mother to care for three young children. She reported nonetheless that there were significant pressures during the time of the marriage, which was characterised by both physical and psychological abuse. This too has been commented upon in the material I have read. Ms Thieu was discharged from hospital with medication but appears to have become at some point non-compliant with this, in the setting of adverse side effects with her then having no further treatment. As a consequence, her mood state deteriorated further and attendant to this, her sense of despair regarding the future. It is clear that she was suffering a severe and recurring Depressive Disorder, with some features of dissociative reactions and auditory hallucinations, which do not appear to have been considered as part of a major psychotic illness, such as for example Bipolar Disorder or Schizophrenia. Ms Thieu remains significantly depressed, with her symptoms in the present being galvanised by her fears regarding her possible deportation. The intensity of her depression is reflected in the medication that she was prescribed at that time.
It was against this backdrop that she offended. It is apparent that her judgment was impacted by her chronic depression and associated symptoms, with her becoming subjective in her outlook, against a backdrop of feelings of desperation as to how she would survive as a single mother supporting three young children. Her emotional vulnerability caused her to be susceptible to adverse peer group dynamics and it was essentially in this context that she offended and then reoffended whilst on bail. Significantly, Ms Thieu stated that she does not use illicit drugs or abuse alcohol. It would appear that her motivation is essentially one to survive her family at a financial and emotional level.
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It is clear that Ms Thieu has used her time in custody and immigration detention to reflect upon her circumstances. The gravity of her conduct is very apparent to her, as is the consequences which will accrue, should she break the law in any way if she is given an opportunity to remain in Australia. She has matured with the effluxion of time. There are a number of protective factors in place to reduce the risk of reoffending in this case. These include her expressions of remorse, the considerable and unqualified support which she enjoys from her three children, who in passing are very keen for their mother to return home to live with them, their willingness to undertake treatment in the community, an absence of any history of substance use and a strong desire for treatment to further progress the insights she has developed since her index offending. She remains psychologically vulnerable but nonetheless now has the support of her children who are older and more capable to assist her at an emotional and financial level…
Taking all factors into account, I believe that with continuing support, supervision and the maintenance of the protective factors I have described, she is now trending from a Moderate risk of reoffending to Low.
At hearing, Mr Watson-Munro confirmed his opinion that the applicant was trending towards a low risk of reoffending. He opined that the applicant’s untreated mental health conditions would have likely impacted her judgment at the time that she engaged in her criminal offending. At hearing, Mr Watson-Munro advised that the applicant was now receiving treatment or her mental health conditions and that it was imperative that she continued. In the context of the applicant stopping treatment in 2009, he said that there was no way to guarantee the applicant’s continual compliance with treatment upon her release, but reiterated that the applicant’s children, who are now grown and mature, would provide considerable support and structure for the applicant. He expressed that this support, coupled with the applicant’s ongoing compliance with treatment, are significant protective factors.
The applicant’s three children gave evidence in these proceedings both in the form of written statements and orally at hearing. They were all impressive witnesses in the sense that they appeared very articulate and mature. They all advised that they were willing to provide support for the applicant upon her release and understood that she suffered from mental health conditions which required ongoing treatment.
In addition to the evidence supporting a finding that the applicant is a low risk of reoffending, I find the applicant’s circumstances a most compelling deterrent. She has lost years of her life being incarcerated and, most significantly, she lost time with her three children. She also now faces the prospect of being removed to Vietnam and losing contact with her children. I am satisfied that the applicant understands the gravity of her previous actions on her life and the possible implications should she reoffend.
Despite the moderate to low risk of reoffending, the nature of the applicant’s offending conduct should she engage in further criminal conduct, could cause serious harm to members of the Australian community.
As a whole, this primary consideration significantly weighs against revocation.
Family Violence
This consideration is neutral in considering whether to revoke the cancellation of the applicant’s visa.
Strength, nature and duration of ties to Australia
Paragraph 8.3 of Direction 99 requires decision-makers to have regard to the strength, nature and duration of a person's ties to Australia. Paragraph 8.3 first directs attention to the impact of the Tribunal's decision on the applicant's family members:
(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) In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
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4) the length of tie the non-citizen has resided in the Australian community, noting that:
i. considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii. more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii. less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The applicant arrived in Australia over 20 years ago, almost half of her life. She spent her formative years in Vietnam. Since arriving in Australia, the applicant has sought to establish a life for herself by starting a family. She has three young children in Australia.
The respondent accepts that the applicant has immediate family members residing in Australia, being her three adult children, and that she has a close relationship with them. The respondent accepts that the applicant's removal would cause emotional hardship on her immediate family, as they would not be able to have physical contact with the applicant. The respondent however notes that the applicant's children are now adults. Nothing suggests that they are unable to take care of their own daily living, or unable to seek employment to financially support themselves having graduated from high school. Further, it is submitted that they may be able to maintain contact with the applicant via social media and visit the applicant in Vietnam if her visa cancellation was not revoked.
The applicants’ children, who are all Australian citizens, have given compelling evidence that they wish for their mother to be reunited with them. They need her financial and emotional support.
The applicant’s oldest daughter, Thi Thanh Nhung Thieu, who is currently 27 years old, provided a statement dated 5 December 2023. She relevantly said:
We wish to hear her advice and her experience in prison as a valuable lesson that she has learned and we want to know for our better future life…
My youngest sister is still studying. She really needs financial support and guidance from my mother whereas my brother is working and further studying for his future. I am struggling to financially support my mother and my siblings…
…the deportation of my mother is just to shatter our mutual love and support in need of each family while my mother has served her time in prison…
The applicant’s son, Thieu Phu Huynh, who is currently 22 years old, said in his statement dated 7 December 2023:
My mother plays a vital role in my family. She enacts as an emotional and psychological foundation for myself and sisters. Although I feel my siblings and I have done our best over the 6-8 years (e.g. graduating high school, obtaining/maintaining consistent work/ studies and overall maintaining our physical wellbeing) a part of me feels incomplete.
Many accomplishments and celebrations have been missed and complications arisen, that could have been eased and unburden for my whole family, by having her there to give words of advice or simply be there to listen.
As I am a young productive studying/working apprentice , I have many ambitions and desires still to achieve. Many future milestones which I believe my mother needs to see me accomplish. Having already missed my prior accolades during my adolescence years, it breaks my heart to know that there is a possibly these goals won’t be achieved with her beside me…
…Although we have gained a robust sense of independence, I definitely believe we still need our mother, through this early time of adulthood to further teach and aspire Kayana, Anna and I to further become better people.
The applicant’s youngest daughter, Thanh Nha Huynh, who is currently 18 years old, said in her statement dated 8 December 2023, that her separation from her mother at a young age has been very painful, and, without the care and guidance of my mother, my siblings and I have struggled in every aspect whether it be financial adversity, mental adversity or spiritual adversity. My mother needs to be with her children. She said that should the applicant be returned to Vietnam we would miss our mother more than we could bear and she believed that her mother’s only priority is to live the rest of her life caring for us. The absence of my mother has evidently caused ongoing struggles and a profound impact on my family. This will continue until my mother comes home. At hearing she expressed that should her mother be removed to Vietnam, it would be the last straw for her emotionally.
Apart from her children, the applicant has a maternal nephew, Tuan Anh Bui, residing in Australia. Mr Bui provided a letter in these proceedings which detailed that he would offer the applicant employment in his café business should she be released into the community. At hearing, Mr Bui stated that the applicant helped him when he first arrived in Australia and reiterated that he was willing to offer the applicant full time employment as a kitchen hand.
The respondent submits that the applicant's contribution to the Australian community through employment is limited. It is accepted that the applicant has had some employment history in Australia as a general hand at a hair salon from 2012 to 2017.
I do accept that the applicant’s strength, nature, and duration of ties to Australia, particularly her ties to her three children and the impact on them should she be removed from Australia, strongly favours revocation of the mandatory cancellation decision.
The best interests of minor children in Australia affected by the decision
This consideration is neutral in considering whether to revoke the cancellation of the applicant’s visa.
The expectations of the Australian community
Paragraph 8.5 provides:
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.
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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 applicant’s criminal offending plainly does not meet the expectations of the Australian community that as a non-citizen she will obey the laws of this country. I am satisfied that the Australian community would expect that the applicant should not hold a visa. This primary consideration weighs against revocation of the mandatory cancellation decision.
Other Considerations
Other considerations are set out in Direction 99, at paragraph 9(1). The applicant has not made any claims in relation to the legal consequences of the decision, nor is there any evidence of any relevant impact on the victim or Australian business interests. As such, the consideration that is relevant in this case is the extent of impediments if removed.
Extent of impediments if removed from Australia
Direction 99 provides, at paragraph 9.2, that:
(1) Decision-makers must consider the extent of any impediments that the non-citizen 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 applicant is a citizen of Vietnam and as such, the relevant country the applicant would be removed to is Vietnam. There are no evident language or cultural barriers for the applicant. The applicant’s mother and siblings reside in Vietnam. I do accept that the applicant has a mother and siblings in Vietnam, however having considered the available evidence, there is no evidentiary basis to accept that the applicant would have their help and support; see DQM18 v Minister for Home Affairs (2020) 278 FCR 529; [2020] FCAFC 184.
The applicant explained at hearing and during assessment with Mr Watson-Munro, that it would not be possible for her to reside with her mother nor siblings in Vietnam for any period of time, even temporarily. This appears to be a result of the size of her families respective housing and the lack of a relationship with her siblings other than for one sister. Additionally, any financial assistance would be very limited. This was supported by the evidence of Mr Bui, who expressed that his mother, the applicant’s sister, although having a relationship with the applicant, lived in very small and limited housing in Vietnam. Mr Bui also expressed that he would be unlikely to provide ongoing financial support to the applicant should she be returned to Vietnam.
Given the applicant’s age and lack of support in Vietnam, I accept that she would have significant trouble obtaining employment or housing.
The applicant is an adult and is apparently in good health generally. However, she is advancing towards old age, currently being in her late fifties, and does have mental health conditions which require ongoing treatment. Significantly, the applicant would likely face emotional hardship upon being returned to Vietnam due to her separation from her children.
At hearing Mr Watson-Munro opined that the applicant’s prospects of survival in Vietnam were bleak. In cross-examination he confirmed that he understood the applicant’s mother and 6 siblings were in Vietnam. But stated that nevertheless, the applicant was elderly, expressed limited prospects of employment and support in Vietnam and was unlikely to receive the treatment she required in Vietnam. He stated that the applicant required extensive ongoing treatment for her mental health conditions upon her release, including medication, cognitive behavioural therapy, psychotherapy and professional support to adjust after her release into the community. He emphasised that should the applicant be returned to Vietnam and separated from her children, there would likely be a dramatic effect on her mental health and a severe escalation in her mental health issues. This was based on his assessment, noting the applicant’s significant psychological history.
There is some evidence that there is only basic metal health care available in Vietnam.
Considering all of these factors, I consider that this factor weighs heavily in favour of revocation.
Decision
The primary considerations of the protection of the Australian community and the expectations of the Australian community weigh in favour of not revoking the visa cancellation decision. I am not persuaded, however, that these considerations outweigh the applicant’s strength, nature, and duration of ties to Australia and the extent of impediments if removed.
The decision under review is set aside and in substitution the mandatory cancelation of the applicant’s visa is revoked.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
.........................[SGD]...............................................
Associate
Dated: 18 January 2024
Date(s) of hearing: 9 and 10 January 2024 Counsel for the Applicant: Mr N Poynder Solicitors for the Applicant: Mr K Trinh, Kevin Trinh Lawyers Solicitors for the Respondent: Mr A Zhang, Clayton Utz
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