TJQM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 54
•18 January 2022
TJQM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 54 (18 January 2022)
Division:GENERAL DIVISION
File Number: 2021/7928
Re:TJQM
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:18 January 2022
Place:Perth
The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
.......[Sgd]..........................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – Applicant convicted of two money laundering offences – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – minor children outside of Australia – expectations of the Australian community – extent of impediments if removed to Vietnam – links to the Australian community – strength, nature and duration of ties to Australia – Applicant is a 34-year-old woman who arrived in Australia nearly eight years ago under a partner visa – Applicant is a victim of domestic violence – domestic violence as a separate other consideration – minor children outside Australia considered as a separate other consideration – Tribunal found that there is another reason to revoke the Cancellation Decision – Reviewable Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(6B), 500(6L), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
CASES
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
JFSQ and Minister for Home Affairs [2019] AATA 616
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 114
RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266
Subasinghe and Minister for Home Affairs [2019] AATA 751
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
Zhuang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2228
SECONDARY MATERIALS
Convention on the Rights of the Child, opened for signature 2 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) preamble, art 3
Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam (13 December 2019)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) paras 4(1), 5.1, 5.1(3), 5.2, 5.2(4), 6, 7, 7(2), 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 8.4(3), 8.4(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4.1(1), 9.4.1(2), 9.4.2(3)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
18 January 2022
BACKGROUND
The Applicant is a 34-year-old woman who is a citizen of Vietnam. She arrived in Australia on 9 March 2014 with her former husband, an Australian citizen who was born in Vietnam, as the holder of a temporary partner visa. She was granted a permanent Partner (subclass 100) visa (Visa) on 23 March 2016 (G38/197-198).
On 6 April 2021, the Applicant was sentenced in the District Court of Western Australia to two terms of imprisonment after being convicted of two counts of “In Western Australia, engaged directly or indirectly in a transaction that involved any money or other property that is the proceeds of an offence; Criminal Code (WA); 563A(1)(a)”. I will refer to these two offences as the Money Laundering Offences. She was sentenced to a term of two years, 10 months and 15 days, as well as a term of 12 months to be served concurrently (R2/2).
Consequently, the Applicant’s Visa was cancelled on 16 April 2021 under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (G7/40-47) (Cancellation Decision). The basis of the Cancellation Decision was that the Applicant did not pass the character test because she had a substantial criminal record and was currently serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory. The notice of the Cancellation Decision advised the Applicant that she could make representations to seek revocation of the Cancellation Decision.
On 20 April 2021, the Applicant’s legal representatives requested revocation of the Cancellation Decision (G8) and on 27 April 2021 and 31 May 2021, made representations and submitted evidence in support of her revocation request (G10-G33).
The Applicant’s legal representatives followed up the Department for an update on her revocation request on 16 September 2021 (G34/191).
After considering the Applicant’s representations, on 25 October 2021, a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (G3/11). This is the Reviewable Decision currently before this Tribunal.
The Applicant was notified of the Reviewable Decision in a letter dated 26 October 2021, emailed to her legal representatives (G3/9–10).
On the same day, 26 October 2021, the Applicant lodged an application in the General Division of the Tribunal seeking a review of the Reviewable Decision (G2/3–8). Therefore, the Applicant filed her application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the
84-day period started running from 26 October 2021, meaning that I must hand down a decision on or before 18 January 2022.
ISSUES
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
I heard this application on 22 December 2021 at the Perth Registry of the Tribunal.
The Applicant was represented by Ms Graziotti of Estrin Saul Lawyers. The Respondent was represented by Mr Burgess of Sparke Helmore Lawyers.
The following witnesses gave oral evidence at the hearing and were cross-examined:
(a)the Applicant;
(b)three of the Applicant’s friends: ND, THL and LT; and
(c)the Applicant’s father who gave evidence with the assistance of a Vietnamese interpreter.
Each witness appeared in person except for the Applicant’s father who gave evidence by telephone from Vietnam.
I admitted the following documents into evidence at the hearing:
(a)Applicant’s Bundle of Evidence comprising pages 1 to 61 (Exhibit A1);
(b)Applicant’s Supplementary Evidence Bundle comprising pages 62 to 136 (Exhibit A2);
(c)s 501 G-Documents, labelled G1 to G39, comprising pages 1 to 221 (Exhibit R1); and
(d)Summons Bundle comprising pages 1 to 193 (Exhibit R2).
The following written submissions were filed by the parties prior to the hearing:
(a)Statement of Facts, Issues and Contentions of the Applicant, dated 24 November 2021 (ASFIC); and
(b)Respondent’s Statement of Facts, Issues and Contentions, dated 8 December 2021.
There is a letter dated 3 May 2021 from MP, who was the Applicant’s criminal defence lawyer for the Money Laundering Offences, written in support of her parole application in the s 501 G-Documents (G22/159).
At the commencement of the hearing, I disclosed to the parties that MP was a good friend of mine at university, but that I had not spoken to him or had any contact with him since I commenced my appointment at the Tribunal approximately four years ago. I told the parties that I could not recall the last time I saw or spoke to MP, but that I estimated that I had not seen or spoken to him during the last 10 years.
I sought the views of the parties at the commencement of the hearing. They did not have any objection to my hearing this matter. I am also satisfied that a fair-minded lay observer would not reasonably apprehend that I might not bring an impartial mind to the resolution of this application by reason of my past association with MP (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337).
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 90
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018).
Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in para 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal—see definition of “decision-maker” in para 4(1) of Direction No 90) must take into account the primary considerations listed in para 8 of Direction No 90, and the other considerations listed in para 9 where relevant (para 6 of Direction No 90).
Specifically, para 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia;
(4)expectations of the Australian community.
Paragraph 9 of Direction No 90 lists other considerations to be taken into account as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 90 can be found in para 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As noted in the “background” section above, on 6 April 2021, the Applicant was sentenced in the District Court of Western Australia to terms of imprisonment after being convicted of the two Money Laundering Offences. These were firstly, a term of two years, 10 months and 15 days; and secondly, a term of 12 months to be served concurrently (R2/2). She has therefore been sentenced to a term of imprisonment of 12 months or more, and as a result, she does not pass the character test by operation of s 501(7)(c) of the Migration Act.
The Applicant conceded that she does not pass the character test due to her “substantial criminal record” (ASFIC, para [41]).
Accordingly, I must now consider whether there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 90)
Paragraph 8.1(1) of Direction No 90 provides that:
(1)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 No 90 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 90)
Paragraph 8.1.1(1) of Direction No 90 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
I will first consider the nature and seriousness of the Applicant’s offending (Direction No 90, para 8.1.1(1)).
The Applicant’s criminal history comprises the two Money Laundering Offences. The sentencing Judge, Gething DCJ, summarised the offences in his sentencing remarks as follows (G5/28):
between 26 February 2019 and 1 June 2019 you made 663 separate bank transactions totalling $1,992,650. Most of those transactions were conducted at ATMs using a cardless deposit feature. You did this to avoid being detected. Additionally you utilised 21 SIM cards and a number of mobile phones, again to avoid detection by bank officials and law enforcement people. That’s count 1.
Count 2, on 26 June 2019 you placed approximately $198,000 in a green Woolworths bag, handed it to your co-offender. [The co-offender] and his wife then proceeded to deal with the money in much the same manner as you did, by using cardless deposit features at ATMs …
His Honour explained that there were some mitigating circumstances surrounding the Applicant’s offending (G5/29-30):
not long after arriving in Western Australia, [the Applicant’s former husband’s] gambling recommenced and you were once again subjected to his bouts of jealousy and emotional abuse.
You wanted to separate in December 2017. [The Applicant’s former husband] agreed to a separation, but only on the condition that you remained living in the same house. Now, [the Applicant’s former husband’s] gambling reached a point where he stole money from people associated with a money-laundering syndicate and became indebted to them and went into hiding for a short period. During that time you were approached by a friend of [the Applicant’s former husband], … Mr V … who explained to you that [the Applicant’s former husband] had stolen money from some people and was annoying them.
…
Mr V explained to you that the people wanted their money back and they were threatening to harm [the Applicant’s former husband], you and your children if the money wasn’t returned. You did not have the money to repay the debt and did not know what was going to happen, so you arranged for your parents to come from Vietnam to Perth to look after your children while you stayed in a hotel for a few days.
Meanwhile, Mr V told you that he would help you to sort out the problem to avoid any harm coming to you or your children. Now, [the Applicant’s former husband] was avoiding the people you stole money from but was communicating with Mr V via a Ciphr phone. Mr V informed you and [the Applicant’s former husband] that to repay the debt, they had to follow the directions to the people in the syndicate. Mr V provided you with a Ciphr phone for the purpose of obtaining instructions.
…
I accept that you felt trapped by your situation and that [the Applicant’s former husband] was insistent that you do the bulk of the work as directed by the people communicating with you on the Ciphr phone.
… you were provided the cash by Mr V and his name was recorded in your Ciphr phone as “Dash”. You were given directions on the Ciphr phone as to which bank accounts and how much cash should be deposited. You were instructed to take photographs of the bank deposit receipts to prove that you had deposited the correct amount of cash in the correct bank accounts.
…
In [sic] 31 May 2019, you were informed that you paid the debt and you made no further deposits after that date.
Now, I also accept that you … ceased offending because you no longer needed to offend as you were no longer under pressure from Mr V. And that’s in relation to count 1 on 31 May and count 2 on 26 June.
In addition to these mitigating circumstances, the Applicant has not committed any of the types of crimes or conduct described as being “viewed very seriously” (such as violent or sexual crimes) or “serious” (such as crimes against vulnerable members of the community) in para 8.1.1(1)(a) and (b) of Direction No 90. However, these sub-paragraphs are not exhaustive and do not limit the range of offences that can be regarded as serious.
Indeed, Gething DCJ referred to “the seriousness of [the Applicant’s] offending” (G5/31, 33 and 35) and noted that money laundering was “vital to the functioning of organised criminal syndicates” with money launderers being “important cogs in the wheel of organised crime” (G5/35). His Honour also referred to the “scale and persistence of [the] offending” which “involved 663 transactions over a period of a number of months” and the “sophisticated efforts [the Applicant] went to to disguise the transactions”. However, His Honour also noted the Applicant “had no real authority” and that she was not “motivated by financial gain”, but due to a desire to free herself from her former husband and the threats from the criminal syndicate against her and her children (G5/31). The Applicant estimated that she was paid 0.85% or 1.5% commission on the sums she deposited, but she did not receive any money because it was credited from the debt owed by her husband (A1/57, para [19]). However, I find that despite the existence of these mitigating factors, the sentencing remarks nevertheless indicate that the Applicant’s offences were serious.
With respect to the sentences imposed by the courts (para 8.1.1(1)(c) of Direction No 90), on 6 April 2021 the Applicant was sentenced in the District Court of Western Australia to two terms of imprisonment for the Money Laundering Offences. As I have mentioned above, these were firstly, a term of two years, 10 months and 15 days (count 1), and secondly a term of 12 months to be served concurrently (count 2). Gething DCJ was satisfied that, “the seriousness of your offending is such that only terms of imprisonment can be justified” (G5/36).
The Applicant has a short criminal history, comprising only the two convictions for the Money Laundering Offences. Although the offending occurred over several months between 26 February 2019 and 1 June 2019, and on 26 June 2019, there are only two convictions in total. I therefore do not consider that she has offended frequently (in the manner contemplated by Direction No 90) or that there is any trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 90). Further, I do not consider that there is a cumulative effect of repeat offending, especially given that the Applicant only has two convictions (para 8.1.1(1)(e) of Direction No 90).
I must also consider whether the Applicant provided false or misleading information to the Department, including by not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 90). There is no evidence that the Applicant has provided false or misleading information to the Department, and so this consideration is not relevant.
Paragraph 8.1.1(1)(g) of Direction No 90, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect her migration status. She has not received any warnings of this nature.
Overall, I find that the nature and seriousness of the conduct (para 8.1.1 of Direction No 90) weighs moderately against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 90)
Paragraph 8.1.2(1) of Direction No 90 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 90 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the non citizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm (para 8.1.2(2)(a) of Direction No 90)
Broadly speaking, the Tribunal is required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 90).
In his sentencing remarks, Gething DCJ stated (G5/35):
money laundering has been described by the Court of Appeal as vital to the functioning of organised criminal syndicates. And money launderers are described as important cogs in the wheel of organised crime. The laundering of the proceeds of criminal activity has been characterised as the lifeblood of organised crime.
… the ultimate object of much criminal activity in such organisations is to obtain money in a form that can be used without alerting law enforcement authorities. And, in particular, the issue is getting it out of Australia.
Now, the laundering of proceeds of criminal activity is often the essential final step in achieving that object.
In summary, money laundering assists organised crime syndicates to function because it effectively “cleans” money from the proceeds of crime and also enables its movement outside of Australia so that it cannot be detected by law enforcement. The ability to “clean” money so that it is untraceable perpetuates the cycle of crime by ensuring that crime does pay. Money laundering facilitates and encourages future criminal activity, including potentially “serious conduct that does cause direct and significant harm” to the community (McKerracher J in RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266 at [48] cited by Member Burford in Zhuang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2228 at [97]). Should the Applicant reoffend in a similar manner, the associated harms to members of the community are broad ranging and potentially very serious and could include physical, psychological, and financial harms.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 90)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if she were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 90).
I note that the Applicant does not have a lengthy criminal history. Indeed, her only offences are the Money Laundering Offences. When sentencing the Applicant, Gething DCJ described the offending as “an aberration by someone who’s of prior good character” (G5/34). These factors are positive in that they suggest a lower likelihood of reoffending than a person who has committed many offences.
There is no formal risk assessment before the Tribunal. However, the sentencing Judge, Gething DCJ stated, “I’m readily satisfied on the balance of probabilities that you present with a very low risk of reoffending” (G5/34).
Gething DCJ also ordered that the Applicant be eligible for parole (G5/37). The Applicant’s criminal lawyer, MP, wrote a letter in support of her parole dated 3 May 2021 (G22/159). He stated that in over 20 years practising as a criminal lawyer he had never agreed to provide any person applying for parole, including a client, with a letter of support. MP confirmed his view that the Applicant was a person who had “made a terrible mistake and was seeking to make amends for her offending”. He stated that, “I know that [the Applicant] has spent time in custody completing as many courses as possible to improve her situation” and that he believed her to be “genuine in her desire to be the best mother she can be”. He stated that he had provided the letter in support of the Applicant being granted parole because he believed that the Applicant “can, and will be, a contributing member of our community if given the opportunity to be released on parole”.
On 10 May 2021, the Prisoners’ Review Board (PRB) granted the Applicant parole from 12 May 2021 for the following reasons (G25/176):
1. The Board notes that your visa to remain in Australia has been cancelled. Nevertheless, if you are subsequently successful in the revocation of the cancellation of your visa, the Board determines that your release in Western Australia does not pose an unacceptable risk to the safety of the community.
2. The Board notes that you have not had the opportunity to engage in intensive treatment programs however your treatment needs can be addressed in the community.
3. Your participation in voluntary programmes, which demonstrates a motivation and willingness to address your offending behaviour.
4. You having no prior criminal history.
5. The salutary impact of your first term of imprisonment and your first opportunity for parole supervision.
6. Your parole plan which includes confirmed suitable accommodation, an intention to find employment and support from Re-Set.
The PRB imposed the additional requirements that the Applicant was “[t]o attend programmes and counselling as directed” and “[t]o engage in employment, training, or job seeking as directed” (G25/176).
I note the PRB’s view was that the Applicant’s release to a period of community supervision on parole, subject to monitoring and specified requirements, would not pose an unacceptable risk to the safety of the community. I further note that the Applicant’s parole period expires on 12 October 2022 and so she will have approximately 10 months on parole if the Cancellation Decision is revoked. I do, however, note that the Applicant intends to travel to Vietnam to recover custody of her two minor children, and that she will need the permission of the PRB to do so. Nevertheless, her release into the community under parole supervision and monitoring is likely to assist the Applicant to reintegrate into the community and will provide a motivation for her not to reoffend. Together with the programs and counselling the Applicant may be directed to undertake as part of her parole, I also note the Applicant’s evidence that she has support from a community organisation, Re-Set, to help her organise accommodation and counselling if she is released into the community (G23/172). This is likely to be a further protective factor.
In an undated letter to the PRB in support of her parole application, the Applicant wrote of the impact that her offending had on her parents and her two minor sons (G17/125-126):
Being in custody has given me nearly two years to reflect on my past behaviour and the bad decisions I have made. I have seen first hand the destructive effects my actions have had on so many lives, knowing that even indirectly I might be the cause. Because of my actions, I am now away from my family my little N and baby I – too young to understand where or why their mommy has gone – have suffered so much in my absence. I can never forgive myself for being the reason behind it. My elderly parents are frightened and stressed, worrying about me and struggling to look after my two small children. I am tormented mentally and emotionally by the separation from my family knowing there is no way to ever fix the impact this had had on them. There is no way I can afford to lose my family again. I want to be a role model for my sons, knowing that their father will never be around – I will be the one for them to look up to; I will be the one who’ll show them right from wrong and to always take responsibility for their action. I will be there to help them grow into the amazing men, I know they will be.
She further stated in her letter to the PRB (G17/127):
I know that no amount of regret and tears can change what I have done and there is no excuse for what I did. I am ashamed of my behavior [sic] and deeply disappointed of [sic] myself. Having been held in remand for 20 months, I live in constant regret and I am reminded every second of every day how pointless it was. I ask only that how I ended up here and how I have since worked to become a better person may in some way be taken into consideration …
In a letter to the Department dated 25 April 2021 (G14/74), the Applicant expressed remorse for her offending. She stated:
I am writing to you today extremely embarrassed, ashamed and remorseful for the offence I have committed. I acknowledge the seriousness of my crime as well as the devastating consequences suffered not only by my family and I but also wider community.
I take full responsibility for my appaling [sic] behaviour and respect the sentence served by the Court as well as respect the decision of the Department after you allow me to explain myself.
Expressing remorse can be indicative that an applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751), which may in turn be a factor that lowers the likelihood of reoffending. When sentencing the Applicant for the Money Laundering Offences, Gething DCJ (G5/33-34):
(a)accepted that the Applicant was “genuinely remorseful” for her offending and had “an understanding of what led [her] to be in this position and so [she was] aware of the things to avoid in the future”;
(b)commented that from the Applicant’s time in prison she had recognised the impact that drugs had on people and that she had recognised that her offending conduct was “tied up with that”; and
(c)noted that the Applicant appreciated the impact of her offending on her parents and her children whom she had not seen for two years and that she was experiencing anxiety because of her separation from them. Indeed, Gething DCJ noted the Applicant’s comment in her letter to the Court which stated, “[t]here’s no way I can afford to lose my family again”.
The co-ordinating Chaplain at the prison where the Applicant was incarcerated stated in a letter dated 18 January 2021, that she had been providing pastoral support to the Applicant since mid-July 2020, and that the Applicant had also undertaken intensive grief recovery support with her between 14 July 2020 and 11 August 2020. Her observations concerning the Applicant were as follows (G16/117):
During her pastoral/ spiritual support sessions [the Applicant] has developed understanding and growth within herself which is evident in her commitment to become aware of how she has managed and avoided her grief in the past and her willingness to look and explore beyond this into a new understanding of her self-awareness.
[The Applicant] is a confident woman who is aware of others and their needs, she is always willing and able to support and encourage others. [The Applicant] demonstrates an internal locus of control and has committed to further developing and understanding her own moral compass.
[The Applicant] is very family oriented and desires the best for her young children and her parents who have continued to provide support to [the Applicant] in caring for her children whilst she has been unable to be present with them.
[The Applicant] has taken responsibility for the actions which led to her incarceration and is accepting of the consequences of this, in doing so this has increased her awareness and understanding of her own integrity and moral standing.
The evidence I have just discussed supports a finding that the Applicant is genuinely remorseful, and has insight into the reasons for her offending, and the consequences of it. I also find that these are protective factors that will lower the likelihood of her reoffending.
I also note, as was recognised by Gething DCJ in sentencing, that the Applicant was not motivated by financial gain, nor did she receive any payment for the offending. Rather, she committed the offences because she was scared for her safety, and the safety of her parents and children if she did not do as instructed to repay her former husband’s debt. At the hearing, the Applicant gave evidence that she now realised she should have gone to the police for help instead of committing the offences (transcript/41). In her written statement dated 25 November 2021, the Applicant stated (A1/58, para [30]):
I regret not telling the police about my fear for my kids and my safety. I didn’t know how to explain this to them. I was so naïve and gullible and followed the instructions for the deposits.
I also note that the Applicant stopped offending on approximately 1 June 2019, when the debt was repaid, and she was no longer compelled to continue offending. The second of the Money Laundering Offences committed on 26 June 2019 is, however, somewhat at odds with this version of events. This was because at the time she committed this second offence, the debt had been repaid and the coercion was removed. Her evidence was that the friend who had involved her in the money laundering scheme, Mr V, had asked her to pass on the bag of money to a person he owed money to, that she agreed to do it, and did not think it was laundered money. My overall impression of the Applicant was that she was genuinely remorseful and honest when giving evidence at the hearing and that she was not attempting to minimise her offending. However, she was likely to have known (or at least suspected), based on her past association with Mr V, that the money was not lawfully obtained, and so it is somewhat concerning that she agreed to pass this money on.
Additionally, the circumstances that existed at the time of the Applicant’s offending are now different. She had been subjected to physical and emotional abuse by her former husband from whom she was separated, but still living with. Her former husband had accrued substantial debts to an organised crime syndicate, and she was fearful for her safety and her family’s safety if she did not follow their instructions to repay his debt. As noted by Gething DCJ, the Applicant “felt trapped by [her] situation”. Also, she was pressured by her former husband, whom Gething DCJ described as “insistent that [she] do the bulk of the work as directed by the people communicating with [her] on the Ciphr phone” (G5/30). After her arrest she cut ties with those involved in the money laundering syndicate (transcript/44). Now, there is no coercion for her to reoffend, she is no longer living with her abusive former husband, she has cut ties with negative peers and has served a prison sentence, followed by a period in immigration detention which has had a negative impact on the Applicant and her family, including the distress of separation from her children.
The Applicant is also anxious to regain custody of her children who are in Vietnam and has a plan to travel to Vietnam to regain custody of them. She stated at the hearing that she could not afford to be separated from her children for any longer and wants to raise them in Australia to become good people. She wants to be a person her children can look up to (transcript/44). In her written statement dated 25 November 2021, the Applicant described her plans to reintegrate into the community and to regain custody of her children (A1/59):
37. If I am released into the Australian community my first priority is to sort out my kids’ custody and get them back to Australia. I will need to ask parole if I can go to Vietnam to pick them up, if my parents still don’t have travel exemption approved, or I can have assistants to accompany my kids to come here and I can be wait for them at the airport to pick them up. I can’t wait to see them and I feel emotional just thinking about it. I need them to come back here ASAP. N needs help and I want them to go to school here. If I could swim across to Vietnam I would, I need to get my children back and back here in Australia - their home.
38. Then my plan is to start again … my beautician business. I have really prepared myself to do that. I am ready for a fresh life, I never want to let myself and my family be in this situation again. If I need help, I can get help from other people. Now I can have a voice and be confident. I really want to get out and start my life again. During time in detention, I have an online job that’s earn 1400 the first month but from the second month at least 3000 per month for extra income so I won’t be a financial burden to Australia …
39.I’m not saying I’m a good person, but I feel like I spend a lot of time and energy trying to help other people, taking care of others and doing what I can in life to help people and to try to be a better person. To be a mother that my sons can look up to.
40.If I am given my visa back I am dedicated to a good, safe life for me and my kids in Australia. I will try my hardest every second to get back on my feet to be able to take care of my poor kids, and never ever stay away from them again because I can’t afford it anymore. I promised I will be a lawful citizen and won’t make any mistake like this ever again. That was way too big lesson to me that I won’t ever forget for the rest of my life.
The Applicant is highly motivated to regain custody of her children and to raise them in Australia. This is likely to be a strong motivation for the Applicant not to reoffend.
The Applicant also has additional support from friends in the community who are willing to provide her with assistance, including LT, who has also offered to give the Applicant support with “any mental, emotional, food and accommodation requirement” and to help her to “earn her second chance as an independent Australian woman” (A1/53, para [8]). A friend, SB, wrote a letter of support dated 14 April 2021 to the PRB which stated that he had been a surety for the Applicant and that he was “happy to help [the Applicant] and assist her and provide support in her future” (G22/158). Her changed circumstances and her desire to regain custody of her children, together with the Applicant’s remorse and insight, are factors that may mitigate against future offending.
The Applicant was not assessed for compulsory programmes in prison due to the backdating of her sentence. This meant that after sentencing she only had four months remaining on her sentence (R2/73). She did, however, make very productive use of her time in prison, completing approximately 40 voluntary and educational programs including general education, a certificate I in Business, parenting courses, wellness programs and even drug and alcohol programs (noting that the Applicant has never had issues with drugs or alcohol) (G16/81-123; G32). In his sentencing remarks, Gething DCJ stated, “I think for someone who’s been in custody you’ve occupied yourself as productively as anyone I’ve seen in a long time” (G5/34). The Applicant’s completion of courses and programs is positive because it shows a willingness and motivation to change and improve herself.
In immigration detention the Applicant has been selling hand drawn portraits through her online business and has been able to save some money to help her if she is released into the community (A2/106). The Applicant’s experience running a business and as a beautician will also help her to earn an income and to make productive use of her time if she is released into the community, which may also be a protective factor.
The Applicant has displayed good behaviour in prison and immigration detention. She had the trusted position of a recreation worker (transcript/43) for approximately eight months. Her parole review report “commended” her for her work and commented that “she is an important part of the team” and a “courteous, hard working individual who takes time to teach the skills she has to others” (R2/72). She also had numerous tests for various types of drugs whilst in prison which were all negative (G33/190).
There was, however, an incident in prison which the Applicant explained in her written statement dated 25 November 2021 as follows (A1/58, para [34]):
In March 2021 when I was in prison officers found a book in my room that had some details about the sex trade in it. This is from when we were playing cards and some girls were asking questions from another prisoner who had been a sex worker. She said she would write down for them information about being a sex worker. At the end of the card game we gathered together all the papers from keeping score (including the book) and kept it in our room. Then officers raid our room and find those notes.
I accept the Applicant’s explanation because there is no evidence of any prior involvement with the sex industry or persons in it. It does not logically follow that she would seek out information about the sex industry given her experience of co-owning and running a clothing company and running her own business as a beautician.
I am reasonably satisfied on the evidence before me that there is a low risk of the Applicant reoffending. This includes the Applicant’s short criminal history and the mitigating factors surrounding her offending, her assessment as a low risk by the sentencing Judge, her release on parole, her completion of numerous voluntary courses in prison, her good prison behaviour, her genuine remorse, her insight into her offending and its negative consequences including the separation from her two minor children, and the Applicant’s release plan which includes regaining custody of her children to raise them in Australia. Her business experience and qualifications will also assist her to be able to support herself if she is released into the community. The period she will have on parole, and assistance from the Re-Set organisation, are further protective factors.
Although, as I have discussed above, the consequences of money laundering can be serious, the Money Laundering Offences do not fall within the types of conduct mentioned in paragraph 8.4(2) of Direction No 90. In the Applicant’s circumstances, I do not regard the low likelihood of her reoffending in a similar manner as being so serious that even countervailing considerations may be insufficient to justify not revoking the Cancellation Decision (paragraph 5.2, Direction No 90).
I therefore find that para 8.1.2 of Direction No 90, being risk to the Australian community should the Applicant commit further offences, weighs slightly against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 90
I have found that para 8.1.1(1) of Direction No 90 weighs moderately, and para 8.1.2 weighs slightly against revocation of the Cancellation Decision. Thus, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs slightly to moderately against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 90)
Paragraph 8.2 of Direction No 90 requires decision-makers to have regard to family violence committed by the non-citizen. The Applicant has not been convicted of any offences involving family violence, nor is there any evidence of family violence related conduct. Consequently, this consideration is not relevant to this application.
She has, however, been the victim of family violence perpetrated by her former husband, which I have considered as part of a separate other consideration below.
The best interests of minor children in Australia affected by the decision (paras 8(3) and 8.3 of Direction No 90)
Paragraph 8(3) of Direction No 90 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration.
Paragraph 8.3 of Direction No 90 then provides further guidance to decision-makers about how they should determine whether non-revocation under s 501CA is, or is not, in the best interests of minor children in Australia affected by the decision.
The Applicant has two Australian citizen sons with her former husband. The children are I, who is four years old and N, who is six years old.
However, the children are currently in Vietnam and this primary consideration concerns the best interests of minor children in Australia.
Consequently, the children do not fall within the scope of this primary consideration, however their interests will be considered as a separate other consideration below.
Expectations of the Australian community (paras 8(4) and 8.4 of Direction No 90)
A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
These expectations are set out in para 8.4 of Direction No 90, which provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
Thus, the Tribunal must give effect to the “norm” stipulated in para 8.4(1) of Direction No 90, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
As is evident from the reference to the “norm” in para 8.4(1) of Direction No 90, the decision-maker is being told unequivocally what the community’s expectations are. Further, para 8.4(4) of Direction No 90 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them. In this regard, the Tribunal agrees with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 114, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman). In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis and footnotes omitted.)
Further detail about what the Australian community’s expectations are, with respect to certain types of conduct, is given in para 8.4(2) of Direction No 90. That paragraph states that the Australian community expects that the Australian government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.4(2)(a)–(f). The Applicant has not committed any of the types of conduct listed in those sub-paragraphs.
Paragraph 8.4(3) of Direction No 90 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
As I have found above, the Applicant does not have a lengthy criminal history having only been convicted of two offences (the Money Laundering Offences). Although there are some mitigating factors and the Applicant is a low risk of reoffending, the offences are serious. I therefore find that in committing these offences, the Applicant has engaged in serious conduct in breach of the expectations of the Australian community that non-citizens will obey Australian laws while in Australia. Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.4(1) of Direction No 90).
I am also guided by the principle contained in para 5.2(4) of Direction No 90, which provides that 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 contributing to the community for only a short period of time. The Applicant first arrived in Australia nearly eight years ago on 9 March 2014 (G38/198). Although she has engaged in some study and employment in Australia, she commenced offending on approximately 26 February 2019 (G5/28), approximately five years after arriving in Australia and has been imprisoned or in immigration detention since 28 November 2019 (G5/37). I therefore find that the Applicant has only contributed to the Australian community for a relatively short period of time.
On balance, I find that para 8.4 of Direction No 90, being the expectations of the Australian community, weighs moderately against the revocation of the Cancellation Decision.
Other considerations (para 9(1) of Direction No 90)
Paragraph 9 of Direction No 90 provides:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
International non-refoulement obligations (paras 9(1)(a) and 9.1 of Direction No 90)
I am required to consider whether Australia’s international non-refoulement obligations arise on any of the submissions, material or evidence before the Tribunal (para 9.1 of Direction No 90).
The Applicant submitted that she had serious and well-founded fears that she and her sons would be harmed by her former husband, who now resides in Vietnam, if she is returned there. This is because of his history of domestic violence and threats he has made against her. These concerns were initially stated as being relevant to international non-refoulement obligations.
However, at the time those submissions were made, the children were initially in the care of the Applicant’s parents in Vietnam, who could bring the children back to Australia if she was released into the Australian community. However, the Applicant’s parents were unable to get a travel exemption to travel back to Australia with the children and the children were taken from the Applicant’s parents by their father in Vietnam in September 2021 or October 2021 (transcript/8 and 81-82). As a result, the Applicant has instituted court proceedings in Vietnam and needs to travel to Vietnam to regain custody of the children, and to bring them back to Australia.
At the hearing, Ms Graziotti stated that the Applicant recognised that her plans to return to Vietnam to regain custody of the children, even if it was for a short time, were inconsistent with her claim that she was owed international non-refoulement obligations (transcript/10-13).
However, given the Applicant’s submission that she has a well-founded fear of harm of domestic violence if she is returned to Vietnam, it is a legal consequence of this decision that I am required to consider. I have therefore considered domestic violence as a separate other consideration below.
With respect to this other consideration of Australia’s international non-refoulement obligations, I find that it should be given neutral weight.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 90)
Paragraph 9.2(1) of Direction No 90 provides:
(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 34 years of age. She has been prescribed anti-depressants since she has been in detention. She takes sleeping pills due to having difficulty sleeping which is associated with her mental health issues. Her clinical health records from immigration detention show that she has been treated in immigration detention for mental health issues and that she has been prescribed medication (A2/77-79).
The Applicant saw a psychiatrist in immigration detention on 27 October 2021 because a review indicated a score of “severe distress” and that the Applicant was not tolerating her medication. The psychiatrist diagnosed “adjustment disorder [due] to detention and family related stressors” (A2/78 and 81).
She has also had issues with her teeth which causes daily toothache and bleeding. These issues still require treatment despite being problematic for approximately five months (G36/194; transcript/37).
On 4 December 2021, the Applicant was taken from immigration detention to hospital in an ambulance. She felt lightheaded, “hot and tingly” and lost consciousness for several seconds and both her hands were “tingly”. The hospital discharged the Applicant, advising her to be careful when standing up suddenly, to keep well hydrated and eat well, and for her general practitioner to organise an echocardiogram (A2/94-95). At the hearing the Applicant stated, “I faint all the time” (transcript/37). As these issues are very recent, it is unclear if there has been a diagnosis or whether the Applicant is likely to require further treatment.
The Applicant came to Australia when she was 27 years of age. There are no language or cultural barriers that would impede the Applicant if she is removed to Vietnam. The Applicant’s movement records also indicate that she has regularly travelled back to Vietnam including flights in 2015, 2016, 2018 and 2019 (G38).
There is no evidence to suggest that the Applicant would not be able to establish and maintain basic living standards (in the context of what is generally available to other citizens of Vietnam). She has work experience as a fashion designer, business owner (including her own business as a beautician) and has qualifications in beauty therapy which will assist her to find work in Vietnam. I do not, however, have any information before me, regarding medical support available to citizens of Vietnam, which given the Applicant’s numerous recent health issues, is of concern.
The Applicant’s parents, brother, sister-in-law, and extended family reside in Vietnam. Her parents have assisted her to care for her children in the past, I find that they are likely to be able to provide her with some social support, including emotional support, if she is returned to Vietnam. I am concerned, however, that the Applicant’s mental health is likely to deteriorate due to her concerns about the safety of herself and her children in Vietnam if she is unable to return to Australia with them. I note that there are frequent references to the Applicant’s distress due to worrying about her children’s well-being in her immigration detention health records. I discuss the Applicant’s fears of family violence from her former husband and her fears for the children’s well-being below under the headings of “best interests of the Applicant’s minor sons” and “fears of domestic violence if the Applicant is returned to Vietnam”.
Overall, there are likely to be some impediments that the Applicant would face establishing herself in Vietnam and maintaining basic living standards, due to her recent health and mental health issues. However, there are no language or cultural issues, and the Applicant would have some support from her parents and the ability to find employment. Therefore, I find that this consideration weighs slightly in favour of revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 90)
Paragraph 9.3(1) of Direction No 90 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), any victims of the Applicant’s offending, or any family members of victims. Consequently, this consideration is not relevant.
Links to the Australian community (paras 9(1)(d) and 9.4 of Direction No 90)
Paragraph 9.4 of Direction No 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
This requires consideration of the strength, nature and duration of an applicant’s ties to Australia and the impact of non-revocation of a cancellation decision on Australian business interests.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1(1) of Direction No 90 provides that:
(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.
Further, paragraph 9.4.1(2) of Direction No 90 provides that:
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant does not have any immediate family members in Australia. Her parents, older brother, sister-in-law, and extended family are all in Vietnam (G13/69), as are her two minor children who are Australian citizens.
As noted in the “background” section above, the Applicant arrived in Australia nearly eight years ago on 9 March 2014 when she was 27 years of age. She started offending on 26 February 2019, nearly five years after coming to Australia.
The Applicant completed a diploma in beauty therapy in 2017 and ran her own business as a beauty therapist from 2017 to 2019 (G13/71). It is unclear whether she fully complied with her income tax obligations whilst working as a beauty therapist. This is because although she submitted a tax return each year, she did not keep records of her weekly earnings and “roughly” estimated her income each year (transcript/56-57). Prior to this, the Applicant was a fashion designer and owned a clothing company with her former husband in 2014 that amongst other things, supplied clothes to department stores and employed four full-time and three part-time workers. She worked as a fashion designer and ran this business until 2017 when the business had to close, due to client dissatisfaction with her former husband being constantly absent and failing to respond to enquiries (G13/72; transcript/23).
She also raised, and was the primary caregiver for, her two Australian citizen sons until they returned to Vietnam with her parents on 30 May 2019 (transcript/78).
She also owns a house in Australia (G24/173) which is mortgaged and currently rented.
The Applicant also has friends in Australia. ND and LT gave evidence in support of the Applicant at the hearing. They both met the Applicant while she was in prison and so they have only known her for approximately two years. THL estimated that she has known the Applicant for approximately three years and said that she and the Applicant were “good friends”. She knew the Applicant in the community at the time she was committing the Money Laundering Offences. It was evident to me that ND, LT and THL are very fond of the Applicant and consider her to be a good and caring person. As mentioned above in the discussion of the risk to the Australian community, LT has offered to give the Applicant emotional and other support, including accommodation, to help her reintegrate into the community if she is released. Another friend, SB, who knew the Applicant for approximately one year before she was charged and held in custody, and who was the Applicant’s surety, has also offered to provide the Applicant with support (G22/158). I find that these friendships are indicative of some ties to Australia despite these friends only knowing the Applicant for approximately two and three years.
In summary, the Applicant’s ties to Australia cannot be regarded as strong. All her immediate and extended family members are in Vietnam. She has only resided in Australia for approximately eight years. She has made some positive contributions to the community. However, I find that these are slightly outweighed by her offending within five years of her arrival. She has two Australian citizen sons, a house in Australia and several close friends.
On balance, I find that para 9.4.1 of Direction No 90, being the strength, nature and duration of the Applicant’s ties to Australia, weighs slightly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.4.2(3) of Direction No 90 provides that:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before me and is therefore not relevant.
Best interests of the Applicant’s minor sons
As I mentioned above, the Applicant and her former husband have two minor children, I, who is four years old and N, who is six years old. The children are currently in Vietnam.
The Applicant’s father gave detailed evidence at the hearing about the circumstances in which the children came to be relocated to Vietnam. I found him to be a credible witness and his evidence supports the Applicant’s evidence concerning her former husband’s behaviour and why she sent the children to Vietnam.
According to the evidence of the Applicant and her father, a domestic incident occurred on 27 May 2019, after the Applicant had separated from her former husband. The Applicant was not home, and her parents were caring for her sons. The Applicant’s former husband broke into the house at one or two in the morning, waking her parents. He smashed items in the house, threatened to kill the whole family with a knife if they did not find the Applicant for him, and attempted to take the eldest child, N. I will refer to this incident as the Home Invasion Incident.
To keep the children safe after the Home Invasion Incident, the Applicant arranged for her parents to take the children to Vietnam on 30 May 2019 and to care for them there (see transcript/78-80). However, the children’s father travelled to Vietnam and took the children from the Applicant’s parents on 26 September 2021.
I will now outline the evidence concerning how the children were taken by their father. The Applicant’s father gave evidence that her former husband (the children’s father), had contacted the Applicant’s parents. He said that he wanted to see the children and to buy clothes and shoes for them. The Applicant’s parents took the children to meet their father and to go shopping. After shopping, the children’s father took them out of their grandparent’s car, whilst the car was stationary in traffic, put them in a taxi and drove away. The Applicant’s parents contacted the police to try to find the children but were subsequently told that the children’s father had obtained a court order in Vietnam giving him custody of the children (transcript/81-82).
An affidavit from the Applicant’s family lawyer in Australia supports the Applicant’s evidence that her former husband used altered documents from Australian Family Court proceedings that were presented to a court in Vietnam to obtain recognition orders giving him custody of the children. Having been shown a copy of the orders, the Applicant’s family lawyer, VB, attested that she had accessed the Commonwealth Courts Portal on 29 October 2021 to confirm that no such Australian Family Court order regarding where the children live or who has parental responsibility for them was ever made. She stated that the order in question appeared to have been edited from other original Family Court orders. In her affidavit, VB also explained that she had contacted the Applicant’s former husband’s family lawyer, KB, to ask if he had sent a letter attaching the edited order to the Vietnamese Court. His response, attached to the affidavit as an annexure, stated that “I have never written to any Court in Vietnam. The attached letter is a forgery and was not written by me. I also do not possess a stamp as displayed on the bottom of the letter” (A1/25, annexure VB3).
I am reasonably satisfied on the evidence before me that the Applicant’s former husband arranged for her parents to meet him so he could take the children. I am also reasonably satisfied that the Applicant’s former husband used altered Australian Family Court orders to get an order from a Vietnamese Court to obtain custody of the children. The evidence regarding the conduct of the Applicant’s former husband, raises serious concerns about his character. The Home Invasion Incident that I described above was a serious incident involving the Applicant’s elderly parents and her children being threatened with a knife and the threatened abduction of the eldest child.
I accept the Applicant’s uncontested evidence that her former husband has frequently made threats against her, including to her parents (G22/160-161). In a written statement dated 16 May 2021, the Applicant’s mother stated that her former husband drank, gambled, used prostitutes and “beat my daughter many times” (G22/164-165). I also accept the evidence of the Applicant and her family members that her former husband had a gambling addiction and committed acts of domestic violence against her, including in front of the children (which is discussed in detail under the consideration of domestic violence below). The Applicant also gave evidence that her former husband had used drugs in front of the children (transcript/35). This evidence raises serious concerns about the well-being of the children while they are in the custody of their father.
Until the children relocated to Vietnam with their grandparents, the Applicant was their primary caregiver. Even when the Applicant and her former husband were married, he did not assist with their care. When the children were living with their grandparents, the Applicant spoke to them daily. However, since their father has taken them, the children have not had any contact with the Applicant. The Applicant’s father stated that he and his wife had only spoken to the children twice by video call since they were taken by their father (transcript/82). The Applicant has made repeated attempts to have contact with the children. However, her former husband will not let her have contact with them because she will not provide him with their passports and birth certificates. She fears that if she does so he could abscond to another country and that she may never see them again. I find that it is in the children’s best interests not to be denied contact with their mother and grandparents who were the children’s primary caregivers prior to the children being taken by their father.
I accept that the Applicant is a loving and responsible parent who is distressed about the well-being of her children while they are in their father’s custody. As I have previously mentioned, her distress has been documented in immigration detention medical records. The children are very young and there is a substantial amount of time until they turn 18. In addition, N has had speech delay and has been diagnosed with autism spectrum disorder. The Applicant’s evidence was that he needs special therapy which she does not believe is available in Vietnam. The Applicant is also concerned about her youngest son, I, who has a lump on his neck, which she is concerned is a tumour.
In a written statement dated 17 December 2021, the Applicant’s mother described the effect of domestic violence against the Applicant on N, as well as the children’s developmental health issues (A2/134):
N was born and raised in a violent family, he is the most disadvantage in the family. He was lacked of the care, time and effort from his father. His mother had to go to work all the time. When N went to childcare, the teacher advised he needs special treatment and we should take him to a specialist about his autism. At that time, [the Applicant’s former husband] always threatened to our family life, so we moved back to Vietnam. N is 6 years old now, we want him to come back to Australia to receive the special medical treatment that he needed and be normal like normal kids. I develops normally. However he got nosebleeding all the time and he got a lumb [sic] in his ear and a tumor on his neck. We haven’t got a chance to find out the reason why, but their father already took them away from us.
The Applicant was the children’s primary caregiver before they were sent to live with their grandparents and if she does not reoffend, she is likely to play a positive role in the children’s upbringing in the future. I note that she completed a parenting short course when she was in custody (G16/122). Her conduct has not had a negative effect on the children, apart from her offending, imprisonment and detention resulting in a further period of separation. Indeed, the Applicant sent the children to Vietnam with their grandparents to keep them safe from their father. Unfortunately, he was able to travel to Vietnam and now has custody of the children.
The Applicant believes that there is an outstanding arrest warrant for her former husband in Australia, and that he will avoid returning to Australia. I accept her evidence in this regard. It is supported by the Amended Statement of Material Facts which names the Applicant’s former husband as a co-offender who deposited $1,056,465 in ATMs and that he is “currently in Vietnam” (R2/116). To keep the children safe, she plans to travel back to Vietnam to regain custody of them, and as I have mentioned above, she has commenced legal action in Vietnam to do so. She then plans to bring the children back to Australia where they will be safe from her former husband because he will avoid travel to Australia or be arrested if he travels here. She fears that if the cancellation of her Visa is not revoked and she is returned to Vietnam, that even if she can regain custody of the children there, she and the children will not be safe from her former husband if they are in Vietnam. Additionally, the children are Australian citizens who are in Vietnam on temporary visas and would be deprived of the benefits of their citizenship, including being able to live in Australia, if they are cared for by their mother and she is unable to return to Australia with them.
There are, however, difficulties that the Applicant must overcome to regain custody of her children if she is able to get her Visa back. She will need to get permission from the PRB to travel to Vietnam and she will need to succeed in her court action in Vietnam. Whether she will succeed is uncertain.
However, the evidence before me raises serious and significant concerns about the children’s health and well-being while they are in the custody of their father and the ability and fitness of their father to care for them properly. I find that the best interests of the Applicant’s Australian citizen children are for them to be cared for by their mother in Australia, where N can receive specialist therapy for his autism spectrum disorder. Revocation of the Cancellation Decision would provide the best opportunity for this to occur. I find that revocation of the Cancellation Decision is in the best interests of both children. Article 3 of the United Nations Convention on the Rights of the Child provides that, “[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Accordingly, I find that this consideration of the best interests of the Applicant’s two minor children weighs very strongly in favour of revocation of the Cancellation Decision.
Fears and risk of domestic violence if the Applicant is returned to Vietnam
As I have discussed above in the consideration of the best interests of the Applicant’s minor sons, I accept the evidence of the Applicant and her father about the Home Invasion Incident, which is supported by statements from her mother and sister-in-law.
In a written statement dated 16 May 2021, the Applicant’s father also said, “[i]f my daughter returns to Vietnam, her husband may kill her because he has threatened to kill the whole family many times” (G22/160). In a statement dated 25 May 2021, the Applicant’s brother stated that he was worried about the safety of his parents, his minor nephews (N and I) and the Applicant while her former husband was residing in Vietnam (G22/169).
In a written statement, also dated 16 May 2021, the Applicant’s mother described him as “an abusive husband” and that “he beat my daughter many times forcing her to ask for help from the police” (G22/164-165).
In another statement dated 17 December 2021 (A2/133-134), after describing the Home Invasion Incident, the Applicant’s mother stated:
This is not the first time he was like that. On 2017 I came to Australia to take care of my pregnant daughter. I witness [the Applicant’s former husband] violent with my daughter all the time. He was charged with what he did but he would never change. When my daughter pregnant on the nineth month, he pulled my daughter to the bathroom and closed the door. I heard she was crying in there, and I saw him to use his leg to choke her he slapped till her nose bleeding and got bruised eye.
In a written statement dated 27 May 2021, the Applicant’s sister-in-law said that when she was studying for a Masters degree in Australia in 2014 and 2015 she personally witnessed the Applicant’s former husband’s abusive behaviour. The Applicant’s sister-in-law stated, “[n]ot only did her ex-husband offen [sic] leave [the Applicant] at home alone for weeks, but he also mentally and physically abused her” (G22/170).
When sentencing the Applicant, Gething DCJ recognised that the Applicant’s husband was abusive (G5/29):
The relationship was marred by his jealousy and he became progressively more controlling of [the Applicant] over time leading to emotional and physical abuse.
I am reasonably satisfied that the Applicant’s former husband was violent towards her during their marriage, and that he has made threats against the Applicant, the children, and the Applicant’s parents, even after the marriage separation (including during the Home Invasion Incident). I accept that the Applicant fears for her safety if she is returned to Vietnam and believes that she will not be safe from her former husband anywhere in Vietnam.
Ms Graziotti referenced country information and other research regarding official and societal attitudes and police responses to domestic violence in Vietnam (ASFIC, paras [132]-[135]). This information included the Department of Foreign Affairs and Trade DFAT Country Information Report Vietnam (13 December 2019):
3.74Punishments for convicted perpetrators of domestic abuse range from warnings through to probation and imprisonment for up to three years. Human rights observers report that authorities treat domestic violence as civil cases unless the victim suffers injuries to more than 11 per cent of the body. Data on domestic violence rates collected by different government agencies in Vietnam varies. For example, the Ministry of Health reported in 2016 that it records approximately 20,000 cases of domestic violence annually, with almost all victims being women. The Ministry of Justice, however, reported that one million divorce cases between 2008 and 2018 involved domestic violence, which would indicate that cases would average around 100,000 per year. These statistics likely underplay the real number of cases, with fear of social stigma or harassment from spouses or family members reportedly preventing many victims from coming forward. A 2015 NGO [Non-government organisation] survey found that 59 per cent of married women had suffered physical or sexual abuse at least once in their lives, typically from a male partner or member of the family.
3.75Popular attitudes towards domestic violence are underpinned by a number of cultural factors, including traditional views of family, marriage and ‘saving face’, and the common practice for women to live with their family-in-law. The first National Study on Domestic Violence Against Women, conducted by the government and UNFPA [United Nations Population Fund] in 2010, found that between 30 and 60 per cent of female respondents, including young women, believed their husbands' violence could be justified under certain circumstances. Police reportedly often encourage victims of domestic violence to ‘solve their problems within the family’ rather than bringing criminal charges. The MPS [Ministry of Public Security] has responded by developing a circular on police response to domestic violence and a police protocol for gender-responsive policing.
…
3.78DFAT assesses that women in Vietnam face moderate levels of official and societal discrimination on the basis of their sex. Women throughout Vietnam face a moderate risk of gender-based violence, particularly domestic violence, regardless of their geographic location or socio-economic level.
Based on the country information discussed above (which includes evidence that women in Vietnam face a moderate risk of domestic violence), as well as the evidence from the Applicant, and her family members, I find that a legal consequence of a decision to affirm the Reviewable Decision would be that the Applicant would be returned to Vietnam in circumstances where there is a real risk of domestic violence being perpetrated against her by her former husband. Further, she would be prevented from returning to Australia to escape this risk and would be reliant on seeking assistance from the authorities in Vietnam. The country information suggests that the protection and support offered to victims of domestic violence in Vietnam is less comprehensive than in Australia due to issues including official discrimination.
If, however, the Cancellation Decision is revoked, although she intends to return to Vietnam temporarily to regain custody of the children, the Applicant will be able to return to Australia where she and the children will be safe from her former husband who is unlikely to return to Australia due to his arrest warrant. She is also likely to have additional protections in Vietnam as an Australian permanent resident because she would, for example, be able to seek consular support. If her former husband were able to follow her back to Australia, the Applicant (and her children) are likely to be afforded a better level of protection and support from Australian authorities, where domestic violence is regarded as a serious issue, and where there are specific laws and protections against domestic violence.
Consequently, I find that this consideration weighs strongly in favour of the revocation of the Cancellation Decision.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 90.
In relation to the protection of the Australian community, I found:
(a)the nature and seriousness of the Applicant’s offending conduct weighs moderately against the revocation of the Cancellation Decision; and
(b)the risk to the Australian community should the Applicant commit further offences or engage in other similar conduct weighs slightly against the revocation of the Cancellation Decision.
Overall, I concluded that the protection of the Australian community primary consideration weighed slightly to moderately against the revocation of the Cancellation Decision.
With respect to the remaining primary considerations, I made the following findings:
(a)the family violence primary consideration was not relevant;
(b)the best interests of the minor children did not fall within the scope of this primary consideration because they are outside of Australia in Vietnam, however their interests were considered as a separate other consideration; and
(c)the expectations of the Australian community weighed moderately against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations:
(a)the consideration of international non-refoulement obligations was given neutral weight;
(b)the extent of impediments if removed weighed slightly in favour of the revocation of the Cancellation Decision;
(c)the consideration of impact on victims did not arise on the material before me;
(d)the Applicant’s links to the Australian community weighed slightly in favour of the revocation of the Cancellation Decision. The impact on Australian business interests did not arise on the material before me;
(e)the best interests of the Applicant’s minor sons, N and I, weighed very strongly in favour of revocation of the Cancellation Decision; and
(f)the real risk of domestic violence being perpetrated against the Applicant by her former husband if she is returned to Vietnam in circumstances where she and the children cannot return to Australia, weighs strongly in favour of revocation of the Cancellation Decision.
Although primary considerations are generally to be given greater weight (para 7(2) of Direction No 90), they are not hierarchical and other considerations can outweigh primary considerations.
Despite two of the primary considerations (the protection of the Australian community and the expectations of the Australian community) weighing slightly to moderately and moderately against revocation of the Cancellation Decision, I find that they are outweighed by the other considerations that weigh in favour of revocation of the Cancellation Decision, being the best interests of the Applicant’s minor children and the domestic violence other consideration. Although the extent of impediments if removed, and links to the Australian community considerations only weighed slightly in favour of the revocation of the Cancellation Decision, they further add to the weighing exercise being in the Applicant’s favour.
I therefore find that there is another reason why the Cancellation Decision should be revoked. The correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
I certify that the preceding 167 (one hundred and sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
........[Sgd].............................................................
Associate
Dated: 18 January 2022
Date of hearing: 22 December 2021 Representative for the Applicant: Ms A Graziotti, Estrin Saul Lawyers Representative for the Respondent: Mr A Burgess, Sparke Helmore Lawyers
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